Take the Fifth

Designated for publication

• United States v. Enclade, 24-30684, appeal from E.D. La.
  • Higginson, J. (Richman, Higginson, Douglas) (oral argument), criminal, sufficiency of evidence, witness testimony, evidence, sentencing, Second Amendment, Commerce Clause
  • Affirming conviction and sentence on drug and firearms charges.
  • Travis Enclade and Terence Wilson, relatives suspected of narcotics trafficking in New Orleans, were the subjects of a two-month DEA surveillance operation using pole cameras, GPS tracking, and phone toll analysis. The investigation culminated in the search of three residences, yielding over 300 grams of methamphetamine, over 100 grams of fentanyl, over 500 grams of heroin, distribution paraphernalia (vacuum sealer, digital scales, a kilo press), and multiple firearms. A recorded jailhouse call captured Wilson directing Enclade to narcotics hidden in a kitchen cabinet at a stash house, using the coded term “ray.” Both defendants were convicted of conspiracy to distribute narcotics; Wilson was also convicted of possession with intent to distribute and felon-in-possession of firearms; Enclade was convicted of felon-in-possession.
  • At issue on appeal was (1) sufficiency of the evidence for conspiracy, possession, and felon-in-possession counts; (2) admission of a lead DEA agent’s lay opinion testimony under Rules 701 and 702; (3) prosecutorial misconduct during rebuttal closing; (4) admission of other-acts evidence of uncharged firearm possession; (5) adequacy of the court’s response to a jury question; (6) denial of a morning-of-trial continuance; (7) cumulative error; (8) substantive reasonableness of Enclade’s sentence; and (9) constitutionality of 18 U.S.C. § 922(g)(1) under the Second Amendment and Commerce Clause.
  • The court found the evidence ample to support each conviction, noting the shared access to a stash house, surveillance footage of hand-to-hand transactions, the jailhouse call, and firearms found in plain view. On Agent Brens’s testimony, the court held that his interpretation of the word “ray” as a drug reference was error under Rule 701(b) because “the jury was equally capable of drawing the same inference from the evidence presented at trial,” but found no plain error warranting reversal given the substantial independent evidence of guilt. The court branded the prosecutor’s rebuttal remark that “law enforcement knew who done it” as “plainly improper” because it “suggested that law enforcement had already resolved Wilson’s guilt before trial and implicitly invited the jury to defer to that conclusion,” but again found no prejudice given the strength of the evidence and the court’s jury instructions.
  • The court rejected Enclade’s sentencing challenge, holding that his career-offender designation was proper based on two prior Louisiana heroin convictions and that the sentencing disparity with Wilson was explained by their different criminal histories. Finally, the court held that existing precedent in United States v. Diaz and United States v. Kimble forecloses Wilson’s Second Amendment and Commerce Clause challenges to § 922(g)(1).

• Quadvest, L.P. v. San Jacinto River Authority, 25-20415, appeal from S.D. Tex.
  • King, J. (King, Smith, Ramirez) (oral argument), antitrust
  • Affirming judgment for defendant on Sherman Act claims.
  • The Lone Star Groundwater Conservation District mandated a 30% reduction in groundwater usage by large volume users in Montgomery County, Texas. The San Jacinto River Authority created a Joint Groundwater Reduction Plan (“Joint GRP”), under which approximately 80 water utilities signed substantially identical contracts featuring a “cost equalization” provision (equalizing the production costs of groundwater and surface water) and a “mandatory connection” provision (allowing the River Authority to require a participant to take surface water). Quadvest, an investor-owned water utility, signed a GRP Contract in 2010 and later challenged it as an unlawful restraint of trade under § 1 of the Sherman Act after successfully undermining the underlying regulation.
  • At issue on appeal was (1) whether the GRP Contract constitutes per se illegal horizontal price-fixing or market allocation under Sherman Act § 1; and (2) whether the agreement fails under the rule of reason.
  • The court corrected two district-court errors—finding that the interstate-commerce nexus should be assessed based on the defendant’s commercial activity rather than the alleged violation, and that the GRP Contract is concerted action rather than unilateral conduct—but ultimately held that neither error altered the outcome. On per se illegality, the court concluded the agreement was vertical, not horizontal, because the River Authority was “acting as a supplier of an input into the production of” Quadvest’s services and the two were not competitors at the time the contract was made. The court likened the River Authority to “an accountant who, while not having tax-code compliance to sell, can offer services to achieve that compliance.” The court also rejected per se price-fixing, noting that “nothing in the GRP Contract sets wholesale water prices or affects Quadvest’s ability to negotiate them with potential customers.”
  • Under the rule of reason, Quadvest failed at the threshold because it did not adequately define the relevant market at trial and forfeited the argument on appeal. The district court found that the proposed geographic market of Montgomery County was “far too large” given that high transportation costs make it economically infeasible to transport water more than a few miles.

• Bonds v. Woodall, 25-60462, appeal from S.D. Miss.
  • per curiam (Higginbotham, Smith, Oldham) (oral argument), qualified immunity, jurisdiction
  • Reversing denial of qualified immunity, and declining pendent jurisdiction over remaining claims.
  • Stacey Bonds, a kindergarten teacher, told a customer-service agent during a heated phone call that she was highly aggravated and might “kill some little kindergarteners.” The agent reported the statements to police in Magnolia, Mississippi. Officers met with Bonds, who admitted making the remarks but said they were “taken out of context.” After consulting an assistant district attorney, officers arrested Bonds for making terroristic threats. A grand jury later returned a “no bill.” Bonds sued the officers and the City under federal and state law for false arrest, false imprisonment, malicious prosecution, and a Fourteenth Amendment violation.
  • At issue on appeal was (1) whether the officers were entitled to qualified immunity; and (2) whether the court had pendent appellate jurisdiction over the remaining state law and municipal liability claims.
  • The court found that the officers had probable cause to arrest Bonds: they had a report from a “disinterested witness” who heard the threatening statements, Bonds herself admitted making them, and she “made such statements at the time that she was in the presence of kindergartners.” On clearly established law, the court held there was “no similar Supreme Court precedent explaining that Bonds could not be arrested, imprisoned or prosecuted for her statements.” The court also rejected Bonds’s Fourteenth Amendment claim, noting that there is “no Fourteenth Amendment ‘liberty interest’ or substantive due process right to be free from criminal prosecution unsupported by probable cause.” The court declined to exercise pendent appellate jurisdiction over the state law and municipal liability claims, finding that reaching them “would require venturing too far afield from the federal immunity at issue.”

• Wessinger v. Vannoy, 25-70012, appeal from M.D. La.
  • Willett, J. (Higginson, Willett, Oldham), Oldham, J., concurring in judgment only (w/o op.) (oral argument), habeas corpus
  • Reversing grant of habeas petition, and remanding with instructions to deny relief.
  • In 1995, Todd Wessinger shot three former coworkers at a Baton Rouge restaurant, killing two and wounding one, then stole approximately $7,000. A Louisiana jury convicted him of two counts of first-degree murder and sentenced him to death. After state post-conviction proceedings were hampered by a denial of investigative funding, Wessinger sought federal habeas relief, arguing his trial counsel was ineffective for failing to investigate and present mitigating evidence at the penalty phase. The district court twice granted habeas relief; the Fifth Circuit reversed the first grant and now reverses the second.
  • At issue on appeal was (1) whether the district court improperly reopened the case after the prior reversal; (2) whether the second post-judgment motion was a second or successive habeas petition requiring prior authorization; and (3) whether 28 U.S.C. § 2254(d) bars relief because the claim was adjudicated on the merits in state court.
  • The court rejected both threshold challenges, holding the case remained open after the prior reversal because “no operative final judgment remained” and the second post-judgment motion was not a successive habeas petition because it challenged a procedural ruling rather than asserting a new claim. On the merits, the court applied Nelson v. Lumpkin and held that Wessinger’s new evidence “is not enough to fundamentally alter the ineffective assistance claim adjudicated in the state court.” The opinion described Wessinger’s strategy colorfully: “Wessinger’s approach is clever: recast the claim as one never presented to the state courts, then argue that defects in the state process excuse the default that maneuver creates. But this clever reframing cannot evade AEDPA. What Wessinger calls a new claim is merely the old claim in new packaging.” Because § 2254(d) applied and neither of its exceptions was met, relief was barred.

• R.J. Reynolds Tobacco Co. v. FDA, 25-40137, appeal from E.D. Tex.
  • Willett, J. (Southwick, Willett, Ho; Ho joining except for Part III.C.1-2) (oral argument), administrative law
  • Affirming district court’s postponement of Rule’s effective date.
  • In the Family Smoking Prevention and Tobacco Control Act (“TCA”), Congress prescribed nine specific warning statements for cigarette packages and advertising, granting the FDA limited authority to “adjust” their format, type size, color graphics, and text. The FDA promulgated a rule requiring eleven warnings instead of nine, discarding all but two of Congress’s statutory warnings and substituting statements of its own drafting, each paired with a graphic image. Cigarette manufacturers and retailers challenged the Rule under the APA, and the district court postponed its effective date under APA § 705.
  • At issue on appeal was (1) whether the FDA exceeded its statutory authority by increasing the number of warnings from nine to eleven; (2) whether the equitable factors support interim relief; and (3) whether the postponement must be limited to the plaintiffs or can be universal.
  • The court held that § 1333(a)(1)’s direction to bear “one of the following labels” followed by nine enumerated warnings establishes a “closed set.” “Rarely is statutory text this crisp,” the court wrote. “Nine is not a placeholder for eleven.” The court invoked a memorable analogy: “If a restaurant menu says a customer may choose ‘one of the following sides’ followed by a list of nine choices, no ordinary diner reads that as license to order an unlisted tenth. Trendy eateries may keep a secret menu; the United States Code does not.” The court rejected the FDA’s reliance on its “adjust” authority, reasoning that “[t]o adjust is to modify something that already exists—not to conjure something new.” It likewise rejected the argument that the FCLAA’s preemption clause (§ 1334(a)) independently empowers the FDA, holding that “[c]ongress does not bury a sweeping delegation in a preemption clause and then erect detailed conditions next door for the agency to vault over.”
  • On remedy, the court held that APA § 705’s text frames relief in “action-centric rather than party-centric terms,” making universal postponement proper, and that Trump v. CASA, Inc. did not restrict statutory APA remedies. The court found irreparable harm from unrecoverable compliance costs and noted the postponement’s limited effect on the public interest, given that “the Rule’s only goal is achieving more information in the abstract, not achieving a real-world change in behavior.” The closing line encapsulated the holding: “Precision in legislation leaves no room for improvisation in execution.”

• United States v. Augillard, 25-30192, appeal from E.D. La.
  • en banc (voting against en banc rehearing: Jones, Smith, Stewart, Southwick, Haynes, Willett, Ho, Duncan, Engelhardt, Oldham, Wilson, Douglas, Ramirez; voting for en banc rehearing: Elrod, Richman, Graves, Higginson); Oldham, J., concurring in denial; Elrod, C.J., dissenting from denial (joined by Higginson, J.) (no oral argument); en banc, criminal, sentencing
  • Denying en banc rehearing of April 27, 2026, panel opinion (Clement, Douglas, Ramirez, per curiam) affirming in part and vacating in part 70-month sentence and supervised release terms for felon-in-possession of a firearm.
  • Julius Augillard pleaded guilty to two counts of felon-in-possession of a firearm. Because he had a prior Louisiana conviction for possession with intent to distribute cocaine, the district court applied an enhanced base offense level under U.S.S.G. § 2K2.1(a)(3), defining “controlled substance offense” by reference to the federal Controlled Substances Act. Augillard argued that his 2011 Louisiana cocaine conviction could not serve as a predicate because Louisiana’s definition of cocaine did not exclude Ioflupane (a radioactive diagnostic compound), whereas the current federal CSA does—creating a facial mismatch under the categorical approach. The panel, applying en banc precedent from United States v. Castillo-Rivera, held that Augillard could not point to an actual Louisiana prosecution for Ioflupane, so his prior conviction still qualified.
  • At issue on en banc poll was whether the “actual case” requirement from Castillo-Rivera—requiring a defendant to identify a real prosecution under the state statute that exceeds the generic federal offense—should be revisited in light of United States v. Taylor (2022) and a 10-1 circuit split.
  • Judge Oldham concurred in the denial, defending the “actual-case rule” as “a glimmer of sunshine in the otherwise-bleak landscape of the categorical approach.” He argued that Taylor did not overrule Duenas-Alvarez but rather “reaffirmed it,” noting that Taylor involved a federal statute with no federalism concerns, whereas the actual-case rule applies to state-statute interpretations. He observed that the categorical approach “has developed a reputation for crushing common sense” and “is a windfall for violent criminals,” but the court “wisely decided not to jettison the actual-case rule in favor of still more fanciful extensions of the categorical approach.” He also noted the Supreme Court has “considered and refused at least 23 cert petitions challenging the actual-case rule.”
  • Chief Judge Elrod dissented, contending that Castillo-Rivera‘s actual-case requirement is “inconsistent with intervening Supreme Court precedent” in Taylor and places the Fifth Circuit on the short side of a “10-1 circuit split.” She argued that Taylor instructs the realistic-probability test is inapplicable “when the text of the predicate statute is a mismatch with the federal definition,” because a facial mismatch “requires no prediction” and involves “no overlap to begin with.” She concluded: “The legally correct result here can fairly be described as counterintuitive, to say the least: A defendant’s cocaine-trafficking conviction loses its force as a predicate offense because of a radioactive diagnostic compound that, so far as anyone can tell, no person has ever abused.” She urged: “If the categorical approach’s consequences are intolerable, the remedy lies with Congress and the Sentencing Commission.”

• Meeks v. Ray, 25-40542, appeal from E.D. Tex.
  • Ho, J. (Jones, Ho, Engelhardt) (no oral argument), prisoner suit, in forma pauperis
  • Denying motion to proceed in forma pauperis.
  • James Meeks, a prisoner, had his civil rights case dismissed by the district court for failure to state a claim—constituting his third “strike” under the Prison Litigation Reform Act’s three-strikes provision, 28 U.S.C. § 1915(g). He sought to appeal in forma pauperis, arguing his third strike should not count until after he received appellate review of the dismissal.
  • At issue on appeal was whether the PLRA’s three-strikes rule bars a prisoner from proceeding in forma pauperis on appeal when the third strike is the very dismissal being appealed.
  • The court held that Coleman v. Tollefson controls, even though that case involved a third strike from a different case rather than the case on appeal, finding this “a distinction without a difference.” The court quoted Coleman: “A prior dismissal on a statutorily enumerated ground counts as a strike even if the dismissal is the subject of an appeal. That, after all, is what the statute literally says.” The court expressly overruled its earlier holding in Adepegba v. Hammons (1996), which had held that a dismissal should not count until appeals are exhausted, stating: “We welcome the opportunity to align the law of our circuit with the plain text of the statute.”

Unpublished decisions

• United States v. Crabtree, 25-10642, appeal from N.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Njoku, 25-20374, appeal from S.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), criminal, sufficiency of evidence
  • Affirming conviction of aggravated identity theft.
  • At issue on appeal was whether the evidence was sufficient to support Njoku’s conviction for aggravated identity theft under 18 U.S.C. § 1028A(a)(1), particularly in light of Dubin v. United States, 599 U.S. 110 (2023), which clarified when a use of another’s means of identification is “in relation to” fraud.
  • Njoku’s aggravated identity theft conviction was based on forging a nurse’s signature on Medicare billing submissions. Although the court had not yet decided whether forging a nurse’s signature falls within the ambit of aggravated identity theft in relation to healthcare fraud, the lack of controlling precedent and Njoku’s failure to challenge the government’s theory demonstrated no plain error.

• Ellis v. City of River Oaks, Texas, et al., 26-10242, appeal from N.D. Tex.
  • per curiam (Clement, Haynes, Ramirez) (no oral argument), civil
  • Affirming judgment for defendant with no issues detailed in opinion.

• United States v. Manzo-Cardenas, 25-11226, appeal from N.D. Tex.
  • per curiam (Elrod, Richman, Southwick) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Anyanwu v. City of San Antonio (CPS Energy), 25-50791, appeal from W.D. Tex.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), employment discrimination
  • Affirming summary judgment dismissal of employment discrimination claims.
  • At issue on appeal was whether the district court properly granted summary judgment on employment discrimination claims (race, national origin, age, and religion) under federal and state law, specifically whether plaintiff established that her termination was pretextual.
  • The court held that Anyanwu failed to raise a genuine dispute of material fact that her termination was pretextual. Her arguments—that the investigation was flawed, that the complaints lacked credibility, and that the facts were contested—were insufficient under Fifth Circuit precedent, which holds that merely disputing an employer’s assessment of the evidence or second-guessing business decisions does not establish pretext.

• United States v. Gilmore, 26-30063, appeal from E.D. La.
  • per curiam (Elrod, Wilson, Douglas) (no oral argument), criminal, compassionate release
  • Affirming denial of motion for compassionate release.
  • At issue on appeal was whether the district court abused its discretion in denying compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), where the defendant argued changes in law and an “unusually long sentence,” as well as favorable § 3553(a) factors including post-conviction rehabilitation.
  • The court pretermitted the exhaustion issue and declined to address extraordinary and compelling reasons, holding that the district court’s weighing of the § 3553(a) factors independently supported denial. The district court found that Gilmore’s offenses—which involved kidnapping, two murders, and two attempted murders—weighed against release, and that a life sentence was needed to reflect the seriousness of his crimes, promote respect for the law, deter criminal conduct, and protect the public.

• Zhuravlev v. Blanche, 25-60410, petition for review of BIA order
  • per curiam (Stewart, Graves, Wilson) (oral argument withdrawn), Graves, J., dissenting; immigration
  • Denying Russian citizen’s petition for review of BIA upholding denial of asylum, withholding of removal and CAT protection.
  • At issue on petition was whether a gay Russian citizen established eligibility for asylum, withholding of removal, or protection under the Convention Against Torture (CAT) based on claims of past persecution and a well-founded fear of future persecution on account of sexual orientation.
  • The court held that substantial evidence supported the BIA’s conclusion that Zhuravlev did not establish past persecution (his experiences amounted to irregular instances of harassment that did not rise to the “extreme” level of persecution), did not demonstrate a well-founded fear of future persecution, and failed to show he would more likely than not be tortured if returned to Russia. The court noted that he traveled freely to and from Russia for years without issues.
  • Judge Graves dissented. He agreed that substantial evidence supported the denial of past persecution and CAT claims but dissented as to the well-founded fear of future persecution.
  • Judge Graves contended that the BIA and IJ “failed to adequately address critical evidence related to Zhuravlev’s fear of future persecution,” including the Russian Supreme Court’s designation of the “international LGBTQ public movement” as an extremist organization, raids on gay clubs across Moscow, Russia’s creation of a database of LGBTQ people, and arbitrary arrests under anti-propaganda laws. “[T]o ignore such a concerning collapse of human rights in Russia without comment reflects a lack of meaningful consideration of Zhuravlev’s arguments.”

• Gaither v. Carter, et al., 25-10983, appeal from N.D. Tex.
  • per curiam (Stewart, Graves, Wilson) (oral argument), sec. 1981, timeliness
  • Affirming dismissal of sec. 1981 claims as time-barred.
  • At issue on appeal was whether claims of racial discrimination under 42 U.S.C. § 1981, intentional infliction of emotional distress, and violations of the Texas DTPA arising from the rejection of a personal check at a bank were time-barred, and whether equitable tolling applied.
  • The court held that all claims were time-barred because the alleged incident occurred on July 14, 2020, but Gaither did not file suit until January 6, 2025—beyond the four-year limitations period for § 1981 claims and the two-year period for DTPA claims. Equitable tolling did not apply because Gaither failed to allege facts showing he diligently pursued his rights. The district court’s denial of leave to amend was also proper because Gaither still could not demonstrate diligence.

• United States v. Brown, 25-50728, appeal from W.D. Tex.
  • per curiam (Clement, Haynes, Ramirez) (no oral argument), criminal, search and seizure
  • Affirming conviction, upholding denial of motion to suppress.
  • At issue on appeal was whether a traffic stop was unconstitutionally prolonged in violation of the Fourth Amendment where a dog sniff was conducted during the stop, and whether the dog sniff was supported by reasonable suspicion of additional criminal activity.
  • The court held Officer Asmus did not prolong the traffic stop and diligently pursued his investigation. Delays were attributable to Brown’s own small talk, arguing, and inability to locate insurance—not officer inaction. The dog sniff did not measurably extend the stop because the canine was already on scene and alerted within one minute. Additionally, the dog sniff was independently justified by reasonable suspicion: officers were surveilling a residence associated with narcotics trafficking, and Brown visited briefly carrying a backpack in a pattern consistent with drug transactions.

• Williams v. Town of Clinton, et al., 26-30139, appeal from M.D. La.
  • per curiam (Haynes, Graves, Ramirez) (no oral argument), qualified immunity
  • Affirming grant of qualified immunity.
  • At issue on appeal was (1) whether the district court erred in granting the arresting officer qualified immunity on the plaintiff’s § 1983 excessive force claim; and (2) whether the court erred in granting summary judgment on federal and state false arrest and malicious prosecution claims.
  • The court agreed that Officer Brown was entitled to qualified immunity on the excessive force claim because Williams’s “conclusory allegation that Brown acted with malice” was insufficient to overcome the defense. The false arrest claims failed because the arrest was conducted pursuant to a facially valid bench warrant, which supplies probable cause. The malicious prosecution claims failed for the same reason—Williams could not show the absence of probable cause.

• In re Anderson (Anderson v. AmeriCredit Financial Services, Inc.), 25-50946, appeal from W.D. Tex.
  • per curiam (Smith, Southwick, Oldham) (no oral argument), bankruptcy
  • Affirming finding of termination of automatic stay.
  • At issue on appeal was whether the bankruptcy court erred in finding that the automatic stay terminated under 11 U.S.C. § 362(h) when the debtor failed to timely reaffirm or redeem her vehicle in a Chapter 7 case, and whether her motion to redeem was properly deemed moot.
  • Several of Anderson’s arguments (regarding Rule 9014(d), § 506(a), and reliance on unproven assertions) were forfeited because they were not raised before the bankruptcy court. On the merits, § 362(h) “demands compliance with the specified action, not a good-faith attempt,” and because Anderson did not successfully redeem her vehicle within the allotted time, the stay terminated automatically by operation of law. Once the stay terminated and the vehicle ceased to be part of the estate, Anderson’s motion to redeem became moot.

• Bissell v. Mata, et al., 25-50656, appeal from W.D. Tex.
  • per curiam (Willett, Engelhardt, Douglas) (no oral argument), qualified immunity
  • Affirming grant of qualified immunity.
  • At issue on appeal was whether Texas child protective services employees were entitled to qualified immunity on § 1983 claims alleging violations of the plaintiff’s Fourteenth Amendment substantive and procedural due process rights—including the right to family integrity—arising from the temporary removal of her minor children.
  • The court held that Bissell’s right to family integrity was not clearly established under the facts of this case, citing precedent in which more egregious conduct by child protective workers still resulted in qualified immunity. Bissell’s claims that the investigation was a “sham” and that evidence was fabricated or ignored were insufficiently supported. Her procedural due process claim also failed because the children were removed pursuant to a court order, and she did not identify clearly established law that was violated. Her argument based on Marks v. Hudson—regarding false statements in an affidavit—failed because the undisputed physical altercation between Bissell and her stepdaughter was the key fact supporting probable cause for removal, and the alleged omissions were not necessary to that finding.

• Cardoza-Bonilla v. Blanche, 25-60640, petition for review of BIA order
  • per curiam (Barksdale, Graves, Duncan) (no oral argument), immigration
  • Denying in part and dismissing in part petition for review of BIA order denying motion to reopen.
  • At issue on petition is whether the BIA abused its discretion in declining to equitably toll the 90-day filing deadline for a motion to reopen immigration proceedings, and whether the court had jurisdiction to review the BIA’s refusal to reopen proceedings sua sponte.
  • The BIA did not abuse its discretion in finding that Cardoza-Bonilla’s failure to show steps taken to pursue relief during four years of inaction constituted a lack of diligence, which was fatal to her equitable tolling claim. Separately, the court lacked jurisdiction to consider her challenge to the BIA’s refusal to exercise sua sponte reopening authority.

• United States v. Sethi, 25-40567, appeal from E.D. Tex.
  • per curiam (Willett, Engelhardt, Douglas) (oral argument withdrawn), criminal, hearsay, jury instructions
  • Affirming convictions.
  • At issue on appeal was (1) whether certain out-of-court statements admitted at trial were inadmissible hearsay; (2) whether the district court erred by not giving a limiting instruction regarding those statements; (3) whether the court abused its discretion in denying a ninth trial continuance; and (4) whether the jury instructions on wire fraud were deficient for omitting date/conduct information from the superseding indictment.
  • (1) The challenged statements were not hearsay because they were offered to prove the statements were made (and were false), not for their truth—Sethi improperly conflated “truth of the matter asserted at trial” with “truth of the matter asserted in the statement.” (2) The district court did not err on the limiting instruction because defense counsel never proposed specific language, never objected to its omission in the final charge, and effectively abandoned the request. (3) The denial of a ninth continuance was not an abuse of discretion given the case’s lengthy pendency, the motion’s proximity to trial (five days), the logistical difficulty of rescheduling a multi-day trial, and Sethi’s failure to show why the evidence was not reasonably discoverable earlier. (4) No plain error in the jury instructions because the jury received the superseding indictment for deliberations, the government detailed the counts multiple times, and Sethi himself jointly proposed the challenged instruction.

• Randel v. Travelers Lloyds of Texas Insurance Co., 25-20231, appeal from S.D. Tex.
  • per curiam (King, Smith, Ramirez) (oral argument), insurance, certification
  • Affirming judgment for insurer on bad-faith claims, and declining certification to state supreme court.
  • At issue on appeal was (1) whether the district court erred in granting summary judgment on the Texas Prompt Payment of Claims Act claim on remand; (2) whether the mandate rule precluded reconsideration of the insureds’ bad-faith claims; and (3) whether the court should certify a question to the Supreme Court of Texas regarding whether payment of an appraisal award bars bad-faith recovery.
  • (1) The Randels doubly forfeited their prompt-payment arguments—first by failing to timely file a response to Travelers’s summary judgment motion below (which was stricken and not appealed), and second by failing to rebut the district court’s dispositive conclusion in their opening appellate brief. (2) Under the mandate rule, the prior panel’s remand was limited solely to the prompt-payment claim; the bad-faith claims were implicitly resolved against the Randels when the panel affirmed dismissal of the breach-of-contract claim. The waiver/forfeiture doctrine independently barred relitigation because the Randels chose not to raise the bad-faith claims on the first appeal. (3) Certification was declined because the bad-faith claims were no longer alive, the law is clear under Ortiz v. State Farm Lloyds and its progeny that payment of an appraisal award forecloses bad-faith claims absent an independent injury, and the Supreme Court of Texas recently denied review of the same issue.

• Degollado v. City of Port Lavaca, et al., 25-40206, appeal from S.D. Tex.
  • per curiam (Richman, Duncan, Oldham) (oral argument withdrawn), qualified immunity, municipal liability, sovereign immunity
  • Affirming qualified immunity and dismissal of other claims.
  • At issue on appeal was (1) whether officers were entitled to qualified immunity on claims of unlawful arrest and unlawful search and seizure under the Fourth Amendment (evaluated under Franks v. Delaware) and failure to intervene under the Fourteenth Amendment; (2) whether a municipal liability (failure-to-train) claim against the city was adequately pled; (3) whether a state-law malicious prosecution claim was barred by sovereign immunity; and (4) whether a post-dismissal property retention claim could be raised for the first time on appeal.
  • (1) The failure-to-intervene claim failed because the plaintiffs pointed to no clearly established law violated by officers executing a warrant-authorized search. (2) On the Franks claim against Corporal Curtis, while the court agreed that his statement that tested products were “a controlled substance listed in Penalty Group 2” was inaccurate (the DPS lab did not test the type or concentration of THC), the plaintiffs failed to allege sufficient facts showing Curtis acted intentionally, knowingly, or recklessly—as opposed to negligently—in relying on ambiguous lab results amid the unsettled legal status of delta-8 THC in Texas. (3) The municipal liability claim failed because a single incident is ordinarily insufficient to show deliberate indifference to a need for training. (4) The malicious prosecution claim was properly construed as arising under state law and was barred by the TTCA’s sovereign immunity for intentional torts. (5) The post-dismissal retention claim was forfeited because it was raised in the reply.