Take the Fifth

Designated for publication

• U.S. v. Peter Villa Cordova, 24-50564, appeal from W.D. Tex.
  • per curiam (Haynes, Ho, Oldham) (no oral argument), Ho, J., concurring; Oldham, J., concurring; criminal, Second Amendment
  • Affirming conviction of possession of a firearm by a felon.
  • Peter Villa Cordova pled guilty to possessing a firearm after a felony conviction in violation of 18 U.S.C. § 922(g)(1). His prior felony convictions include drug possession and evading arrest or detention with a motor vehicle. He pled guilty without a written agreement and preserved his right to bring an as-applied Second Amendment challenge by raising it in a motion to dismiss the indictment.
  • At issue on appeal was whether 18 U.S.C. § 922(g)(1), which prohibits felons from possessing firearms, violates the Second Amendment as applied to Cordova in light of New York State Pistol & Rifle Association v. Bruen and United States v. Rahimi.
  • In a brief (two-page) per curiam, the court held that Cordova’s as-applied challenge to § 922(g)(1) fails because his prior conviction for evading arrest with a motor vehicle demonstrates that he poses a “credible threat to the physical safety of others.”
  • The per curiam opinion applies the circuit’s existing framework from United States v. Diaz and its progeny. The court notes a “tradition of disarming individuals . . . whose underlying convictions stemmed from the threat and commission of violence,” citing Bollock and Simpson. Because “vehicular pursuits” are “often catastrophic,” Cordova’s decision to use a car to evade police is “probative of his dangerousness” and shows he poses a credible threat to the physical safety of others.
  • Judge Ho concurred separately to highlight “serious constitutional questions” raised by § 922(g)(1)’s breadth—it imposes a lifetime ban on firearm possession for anyone convicted of any felony punishable by more than one year in prison, with no time limit, even if the person “has never been sentenced to serve a single day in prison.” “The right to keep and bear arms under the Second Amendment is a fundamental civil right, comparable to other provisions of the Bill of Rights.” Judge Ho notes that Cordova was convicted a decade before the events of this case, was never sentenced to prison, and his probation ended seven years before he was found in possession.
  • However, Judge Ho concurs because Cordova “does not challenge the validity of his lifetime disarmament” on appeal and fails to provide authority that the ten-year lapse raises Second Amendment concerns. He contrasts § 922(g)(1) with red flag laws, noting that “at least red flag laws impose only temporary disarmament,” while § 922(g)(1) “disarms individuals for the rest of their lives, regardless of whether the individual has been convicted of a violent crime or spent a single day in prison.”
  • Judge Oldham also separately concurred, at length (approximately 28 pages). Judge Oldham contends that the circuit’s foundational felon-in-possession precedent, United States v. Diaz, is “wrong on the day it was decided” and “gets more wrong with each passing day.” He opens with a declaration that the Second Amendment “reflects a fundamental, God-given right that long predates our Nation’s Founding,” quoting St. George Tucker’s characterization of the right to bear arms as “the true palladium of liberty.”
  • Judge Oldham identifies five flaws in Diaz: (1) ambiguity over whether its death-penalty prong or its historical-analogue prong is dispositive, creating conflicting panel decisions; (2) the death-penalty rationale is logically and historically wrong—felons could “repurchase arms” after completing sentences; (3) the historical-analogue inquiry is “shoddy,” relying on two unadopted proposals and four “going armed” laws without meaningful analysis; (4) confusion over whether courts may look beyond the specific predicate offense to a defendant’s broader conduct, producing contradictory panel decisions (Reyes, Kimble, Alaniz, Hernandez, Cockerham); and (5) Diaz “pales in comparison to its peers” in other circuits that have produced “well-reasoned, lengthy opinions combing over complex history.”
  • In place of Diaz, Judge Oldham proposes a dangerousness standard rooted in English and American history. He traces the tradition of disarming the dangerous from seventeenth-century England—through the Rump Parliament, Cromwell, Charles II, James II, and the Glorious Revolution—through colonial America, where disarmament targeted seditious libelers, Catholics, indentured servants, and loyalists—to the ratification debates, where proposals by Samuel Adams (Massachusetts), the Pennsylvania Anti-Federalists, and the New Hampshire convention all reflected a principle that only “dangerous” individuals could be disarmed. He distills two themes: “governments could disarm individuals they deemed dangerous,” and “who was deemed dangerous (or why they were deemed dangerous) changed over time.”
  • Applying his proposed framework, Judge Oldham concludes that Cordova’s drug possession conviction alone likely would not justify disarmament—citing recent circuit decisions holding “mere possession does not support disarmament under § 922(g)(1).” But Cordova’s conviction for evading arrest with a vehicle satisfies the dangerousness standard because such conduct is “purposeful, violent, and aggressive” and “involves a serious potential risk of personal injury to others.” He would affirm on that ground rather than rely on “Diaz‘s nonsensical legal standard,” concluding: “Cordova’s criminal history and characteristics demonstrate that he is dangerous.”

Unpublished decisions

• Nicholas Services, L.L.C. v. Glassdoor, L.L.C., 25-60327, appeal from N.D. Miss.
  • Oldham, J. (Stewart, Graves, Oldham) (oral argument), defamation, venue, appellate jurisdiction
  • Affirming dismissal of one company’s defamation claim and dismissing appeal of other company’s defamation claim for lack of appellate jurisdiction.
  • Nicholas Air and Corr Flight, Mississippi-based private aviation companies, discovered negative employee reviews on Glassdoor’s website. Nicholas Air claimed its company profile and signed Glassdoor’s Terms of Use, which contained a forum selection clause requiring disputes be litigated in California. They sued in Mississippi state court for defamation; Glassdoor removed the case to federal court and moved to dismiss or transfer. The district court severed and transferred Nicholas Air’s claims to the Northern District of California and dismissed Corr Flight’s defamation claim under Rule 12(c).
  • At issue were (1) whether the Fifth Circuit had jurisdiction to review a sever-and-transfer order after the transferred case was litigated to final judgment in another circuit; and (2) whether Corr Flight stated a claim for defamation.
  • “The principal question presented is whether a party can lose a transfer motion in our circuit, wait until the transferred case is litigated to judgment in our sister circuit, and then use § 1291 jurisdiction to undo the long-ago-transferred-and-now-final decision. We hold it cannot.” Once a case is transferred out of circuit, the Fifth Circuit cannot order the transferee court to return it, and Nicholas Air failed to diligently seek mandamus relief.
  • As to Corr Flight, the court reviewed the second amended complaint de novo and found no reversible error in the district court’s conclusion that Corr Flight failed to allege facts showing Glassdoor’s statements were “clearly directed” at Corr Flight or “clearly and unmistakably defamatory.”

• Florida Gas Transmission Company, L.L.C. v. U.S. Department of Transportation, 24-60420, on petition for review of DOT (Pipeline and Hazardous Materials Safety Administration) order
  • per curiam (Haynes, Ho, Oldham) (oral argument), administrative law
  • Vacating agency’s order that found plaintiff pipeline company had violated pipeline safety regulations.
  • Florida Gas operates the Sanford Lateral, a natural gas pipeline built in 1959 from low-frequency electric-resistance-welded steel pipe. In 2020, the pipeline ruptured along its longitudinal seam; the escaping gas ignited and burned roughly 51,500 square feet of land. The cause was stress-corrosion cracking. PHMSA investigated and found Florida Gas violated 49 C.F.R. § 192.619 (maximum allowable operating pressure records) and § 192.937(c)(1) (failing to use an MFL-C inspection tool).
  • At issue on appeal were (1) whether fining Florida Gas under § 192.619(a)(3) for inadequate records was arbitrary and capricious and violated fair notice; and (2) whether Florida Gas was required to use an MFL-C tool under § 192.937.
  • On the MAOP violation, § 192.619(a)(3) “only describes how to calculate MAOP. It says nothing about maintaining ‘operating pressure records.'” The agency’s “atextual gloss on § 192.619(a)(3) fails to give fair notice” because it effectively “converts an operating-limit provision into an after-the-fact paperwork rule . . . without any textual hook.” The proper vehicle for recordkeeping violations would have been § 192.619(f), which the agency did not charge.
  • On the tool-selection violation, the court held there was no established seam failure prior to the 2020 rupture to trigger § 192.917(e)(4). The court relied on ExxonMobil Pipeline Co. v. U.S. Dep’t of Transp., 867 F.3d 564 (5th Cir. 2017), holding that regulations requiring operators to “consider” and “take into account” threats “unambiguously serve[] to inform a pipeline operator’s careful and deliberate decision-making process rather than to compel a particular outcome.” Quoting Loper Bright, the court stated: “‘[Q]uestions of law are for courts rather than agencies to decide.'”

• United States v. Raynaldo Rivera Ortiz, Jr., 24-11032, appeal from N.D. Tex.
  • per curiam (Richman, Higginson, Oldham) (oral argument), Higginson, J., dissenting in part; criminal, sufficiency of evidence, 404(b), expert witness, prosecutorial misconduct
  • Affirming conviction of tampering with a consumer product and adulteration of a drug.
  • Dr. Ortiz, an anesthesiologist in Dallas, was convicted of five counts of tampering with a consumer product (18 U.S.C. § 1365(a)) and five counts of adulteration of a drug (21 U.S.C. §§ 331(k), 333(b)(7)). During the summer of 2022, patients at Baylor Scott and White Surgicare experienced unexplained hypertensive episodes during surgery, and another anesthesiologist (Dr. MK) died from suspected bupivacaine poisoning after administering herself an IV. Surveillance video showed Dr. Ortiz handling IV bags near a warmer in patterns inconsistent with his duties; testing revealed tainted IV bags containing bupivacaine, lidocaine, and epinephrine. He received the statutory maximum sentence of 2,280 months.
  • At issue on appeal were (1) sufficiency of the evidence; (2) admissibility of evidence regarding Dr. MK’s death under Rules 104, 403, and 404(b); (3) whether allowing a Government expert who violated the sequestration rule (Rule 615) to testify was an abuse of discretion; and (4) whether a Government closing argument comment improperly referenced defendant’s silence.
  • On sufficiency, the court found, “There was overwhelming evidence from which a reasonable jury could have concluded beyond a reasonable doubt that Dr. Ortiz poisoned each of the IV bags.” The court detailed video surveillance showing Dr. Ortiz placing bags in the warmer before each patient’s surgery, with no one else accessing the warmer in between, and scientific testing confirming chemicals not supposed to be present in patients’ blood and IV bags.
  • On the Dr. MK evidence, the court assumed without deciding that the district court erred in admitting it but held any error harmless, given the “substantial evidence of Dr. Ortiz’s guilt” and the jury charge’s limiting instructions.
  • On Rule 615, the court held that expert witnesses are routinely exempted, and Dr. Ortiz failed to show sufficient prejudice. The court noted that “experts [are] not witnesses whose recollections might [be] colored by accounts of prior witnesses” and that defense counsel could have sought its own exemption.
  • Judge Higginson dissented in part, as to the 404(b) issue, and would have ordered a limited remand for the district court to conduct a proper Rules 104, 403, and 404(b) analysis of the Dr. MK evidence, writing: “I cannot say that the grisly Dr. M.K. evidence—a brutal murder, recited with unimaginable anguish by a grieving widow who described his late wife’s horrible, bewildered final moments—was harmless in this close, entirely circumstantial case about medical tampering.” He noted the district court “appears only to have announced pretrial, ‘I’m going to permit the 404(b) stuff'” without conducting a Huddleston determination or Beechum balancing, and stated: “To ensure a fair trial in this complex case, the district court was required to do more with such tragic, impactful evidence.”

• Dora Doss Thompson v. State Farm Lloyds, 24-20519, appeal from S.D. Tex.
  • per curiam (Southwick, Higginson, Wilson) (oral argument), insurance
  • Affirming summary judgment dismissal of claims against insurer arising from hail damage to roof.
  • Thompson filed an insurance claim for hail damage to her roof in Cypress, Texas, attributing it to a September 28, 2021, storm. State Farm’s inspections found no hail damage to the roof and estimated covered losses below the deductible. An appraisal umpire set replacement cost at $57,983.61, but State Farm maintained the covered losses did not exceed the deductible. Thompson sued for breach of contract, bad faith, and Texas Insurance Code violations. Her own expert could not tie the damage to any particular storm, testifying the damage “could have happened . . . after the date of loss, but before [he] inspected it or before the date of loss.”
  • At issue on appeal were (1) whether Thompson met her burden under Texas law to establish the timing of her loss within the policy period; (2) whether her extra-contractual claims survived absent a viable breach of contract claim.
  • Under Texas law, each annual renewal of an insurance policy creates “a separate and distinct contract for the period of time covered by the renewal.” Thompson’s theory that coverage was continuous from 2007 failed because the policy stated its effective dates as a one-year period. Without identifying which policy period the loss fell under, she could not establish breach.
  • The court noted that “on this spare record, the fact of hail damage itself is not enough to evidence that a covered loss happened within the policy period.” Thompson’s expert’s testimony offered only a “supposition as to the time of Thompson’s loss” across a multi-year window.
  • Because Thompson alleged no independent injury beyond the breach of contract, her extra-contractual claims “fall with the breach of contract claim” under USAA Texas Lloyds Co. v. Menchaca.

• Herod v. Guerrero, 25-40247, appeal from S.D. Tex.
  • per curiam (Richman, Engelhardt, Wilson) (oral argument), Engelhardt, J., concurring (joined by Wilson, J.); habeas corpus
  • Reversing grant of habeas relief and remanding for further proceedings.
  • Herod was convicted in 2012 of aggravated sexual assault and aggravated robbery after armed robbers invaded a Texas City home, bound the husband with zip ties and a white t-shirt blindfold, and sexually assaulted the wife. At trial, a DPS analyst testified Herod “could not be excluded” as a DNA contributor to the blindfold at a probability of 1 in 87 Caucasians. In 2017, DPS issued a supplemental report under updated protocols excluding Herod from that DNA mixture. The district court granted federal habeas relief under § 2254, finding Brady and Napue violations.
  • At issue were (1) whether Herod’s Brady and Napue claims were procedurally defaulted; (2) whether he showed prejudice to overcome the default; and (3) whether Teague‘s non-retroactivity bar applied to one of the Brady claims.
  • The court found the claims procedurally defaulted (the CCA dismissed the second state habeas petition on procedural grounds) and, while cause was conceded, Herod failed to show prejudice. The DNA evidence “had limited import”—even under the allegedly erroneous testimony, Herod was “only minimally connected” to the blindfold—and other trial evidence was substantial, including victim identification, girlfriend’s testimony, and cell phone records tying Herod to the crime scene.
  • The court emphasized: “Disclosing the ‘fact’ that Herod was actually excluded . . . could not reasonably have moved the jury’s needle. The jury had heard already from the defense expert that—setting aside technicalities—Herod should have been excluded from the DNA mixture.”
  • Judge Engelhardt concurred. Even if Herod had overcome the procedural default, one of his Brady arguments—that the state suppressed the “fact” of his exclusion, which was unknown until a 2017 reanalysis—is barred by Teague v. Lane because “Brady would not require the state to disclose a fact that it had no knowledge of at the time of trial.” The concurrence concluded: “The federal courts are barred from [breaking new constitutional ground] on collateral review.”

• Gutierrez v. Blanche, 25-60646, petition for review of BIA order
  • per curiam (Smith, Higginson, Wilson) (no oral argument), immigration
  • Denying Venezuelan citizen’s petition for review of BIA’s dismissal of an immigration judge’s order of removal denying asylum, withholding of removal, and protection under the Convention Against Torture (CAT), and BIA denial of petitioner’s motion for remand.
  • The court found nothing compelling a conclusion contrary to the BIA’s determination that petitioner failed to establish past persecution or a well-founded fear of future persecution, particularly given his family’s continued residence in Venezuela and the delay between the only physical-harm incident and his departure. His CAT claim failed because he did not show he would more likely than not be tortured with official acquiescence if repatriated. No abuse of discretion was found in the denial of remand because petitioner cited nothing showing the BIA erred in rejecting his assertion that new evidence would likely have changed the result.

• United States v. Keelin, 25-11265, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Esquivel, 25-50249, appeal from W.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Short, 25-30676, appeal from E.D. La.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal, compassionate release
  • Affirming denial of motion for compassionate release.

• United States v. Ceballos Maturin, 25-50424, appeal from W.D. Tex.
  • per curiam (Davis, Wilson, Douglas) (no oral argument), criminal, guilty plea
  • Affirming guilty-plea conviction.
  • At issue on appeal were (1) whether defendant’s unconditional guilty plea waived his challenges to the validity of the indictment; and (2) whether the district court committed plain error under Federal Rule of Criminal Procedure 11(b)(1)(G) by failing to advise defendant that knowledge of an export-license requirement was an element of smuggling ammunition under 18 U.S.C. § 554(a), and relatedly whether there was a sufficient factual basis for the plea.
  • The court held that the unconditional guilty plea waived indictment challenges. On the Rule 11 claim, the court found no error at all—let alone plain error—because under United States v. Cardenas, 810 F.3d 373 (5th Cir. 2016), proof that the defendant knew an export license was required is not actually an element of § 554(a).

• Del Rio et al. v. CrowdStrike, Inc., 25-50518, appeal from W.D. Tex.
  • per curiam (Richman, Duncan, Oldham) (oral argument), civil
  • Affirming dismissal of claims, with no description of claims or appeal issues.