U.S. Fifth Circuit: January 2010 Archives
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January 2010 Archives

Estate of Artall v. Comm'r. of Int'l. Rev., No. 09-60092

In the taxpayer's appeal from the tax court's approval of the IRS Commissioner's disallowance of a "qualified family-owned business interest" estate tax deduction to the taxpayer estate, the tax court's order is affirmed where the "qualified family-owned business interest" deduction of 26 U.S.C. section 2057 is available for an estate's qualifying equity or ownership interests but not for debt interests such as loans receivable.

Read Estate of Artall v. Comm'r. of Int'l. Rev., No. 09-60092

Appellate Information

Filed January 28, 2010

Judges

Opinion by Judge Smith

US v. Martinez-Rios, No. 08-40809

Defendant's conviction for illegally reentering the U.S. is affirmed where, although the district court erred in admitting a Certificate of Nonexistence of Record (CNR) without hearing the testimony of the records analyst who created it, there was sufficient evidence apart from the CNR to convict defendant.

Read US v. Martinez-Rios, No. 08-40809

Appellate Information

Filed January 28, 2010

Judges

Per Curiam

Service Employees' Int'l. Union v. Houston, No. 08-20616

In an action by a union claiming that city ordinances, pursuant to which the city denied the union a permit to conduct a rally in support of a strike, violated the First Amendment, partial summary judgment for defendants is affirmed in part where: 1) the city's noise ordinance made reasonable distinctions among categories in the level of disruption caused by noise that required a permit and noises that came from exempted sources; and 2) the enforcement of Houston's parade ordinance did not turn on whether paraders were protesting as opposed to celebrating.  However, the order is reversed in part where: 1) the city's limit of two permits per location per thirty-day period was not narrowly tailored and was thus unconstitutional; and 2) the Houston Parks Department failed to specify which areas of the City's parks required permits, and this rendered the ordinance at issue void for vagueness.

Read Service Employees' Int'l. Union v. Houston, No. 08-20616

Appellate Information

Filed January 28, 2010

Judges

Opinion by Judge Southwick

US v. Carter, No. 08-20235

In defendant's appeal from a denial of his motion to reduce his drug and firearm possession sentence in response to a recent change to the federal sentencing guidelines for crimes involving crack cocaine, the order is affirmed where defendant was subject to a statutory minimum sentence greater than the high end of his guideline calculation, whether calculated with or without the crack cocaine amendments.

Read US v. Carter, No. 08-20235

Appellate Information

Filed January 28, 2010

Judges

Per Curiam

Williams v. Henagan, No. 07-30997

In an action by a prisoner alleging various constitutional deprivations during his confinement, summary judgment for defendants is affirmed where: 1) plaintiff's claims against two state entities and state employees in their official capacities were barred by the Eleventh Amendment; 2) under the Fair Labor Standards Act, plaintiff was not an "employee" of one defendant, and he was not "engaged in commerce" while working for another, in the context of the hard labor to which he was sentenced; and 3) plaintiff's being forced to work on private property did not render his labor involuntary servitude.

Read Williams v. Henagan, No. 07-30997

Appellate Information

Filed January 28, 2010

Judges

Per Curiam

US v. Broadnax, No. 08-10494

Defendant's conviction for being a felon in possession of a firearm is affirmed where: 1) no constructive amendment of the indictment occurred because neither the evidence at trial nor the jury instructions implied that defendant could be convicted of anything other than being a felon in possession of a firearm that had been in and affecting interstate commerce in violation of 18 U.S.C. section 922(g)(1); and 2) where a defendant's stipulation to a prior felony offense uses the very language of the statute that defines that element of the offense, he has stipulated that the element is satisfied as a matter of fact and law.

Read US v. Broadnax, No. 08-10494

Appellate Information

Filed January 26, 2010

Judges

Opinion by Judge Garza

Siesta Village Mkt. LLC v. Steen, No. 08-10146

In a dormant Commerce Clause challenge to a Texas law allowing alcohol retailers to ship to the door of their local consumers, partial summary judgment for plaintiffs is vacated where the Twenty-First Amendment permitted Texas to authorize its in-state, permit-holding retailers to make sales and prohibit out-of-state retailers from doing the same.

Read Siesta Village Mkt. LLC v. Steen, No. 08-10146

Appellate Information

Filed January 26, 2010

Judges

Opinion by Judge Southwick

US v. Phipps, No. 08-10831

Defendant's tax fraud conviction is affirmed where: 1) a rational jury could find that a fax sent by a participant in defendant's investment program updating her contact information in anticipation of future payments was an important part of "lulling" participants into believing that defendant's investment scheme was a legal, secure financial program; 2) defendant did not show that his behavior advising and advocating tax evasion to participants should be entitled to First Amendment protection; and 3) defendant was at the very least on notice that the IRS expected him to pay taxes on his income from the operation.

Read US v. Phipps, No. 08-10831

Appellate Information

Filed January 25, 2010

Judges

Opinion by Judge Garza

Chaney v. Dreyfus Serv. Corp., No. 08-60555

In a tort and civil RICO action against an investment company through which a third party funneled certain insurance companies' funds before moving them to his Swiss bank account, summary judgment for defendant is affirmed in part where there was no evidence that defendant knew or ought to have known that the funds it processed on behalf of the third party's firm were, in fact, fiduciary. However, the order is vacated in part where New York law did impose on defendant a duty -- in this case running only to certain subaccounts -- to ensure that the transactions it processed on behalf of its customers were authorized.

Read Chaney v. Dreyfus Serv. Corp., No. 08-60555

Appellate Information

Filed January 25, 2010

Judges

Opinion by Judge Jolly

Libertarian Party v. Dardenne, No. 09-30307

In an action seeking to declare unconstitutional the Louisiana Secretary of State's deadline for submitting qualifying papers entitling candidates to be on the ballot for the 2008 presidential election, dismissal of the complaint as moot is affirmed where plaintiffs failed to show a reasonable expectation that the Secretary would again unilaterally change filing deadlines in the future.

Read Libertarian Party v. Dardenne, No. 09-30307

Appellate Information

Filed January 22, 2010

Judges

Opinion by Judge Haynes

US v. Pineda, No. 08-41301

The $100 special assessment portion of the district court's order revoking defendant's supervised release for illegal reentry into the U.S. is vacated where the district court erred in reimposing the unpaid assessment from defendant's sentence for a prior offense, because neither 18 U.S.C. section 3013 nor 18 U.S.C. section 3583, which concerned supervised release, sanctioned the imposition of a section 3013 assessment for revocation of a term of supervised release.

Read US v. Pineda, No. 08-41301

Appellate Information

Filed January 22, 2010

Judges

Per Curiam

Arete Ptnrs. LP v. Gunnerman, No. 06-51133

In an action for breach of contract and fraud in connection with a settlement agreement entered by the parties, judgment for plaintiff is reversed where there was insufficient evidence of defendant's intent to defraud plaintiff at the time the agreement was made.

Read Arete Ptnrs. LP v. Gunnerman, No. 06-51133

Appellate Information

Filed January 15, 2010

Judges

Opinion by Judge Owen

Lone Star Fund V (US) v. Barclays Bank PLC, No. 08-11038

In an action claiming that defendant-bank engaged in a fraud relating to mortgage-backed securities that defendant sold to plaintiff, the dismissal of the action is affirmed where the complaint failed to allege a misrepresentation in light of the "repurchase or substitute" clauses in the parties' mortgage-backed securities contracts.

Read Lone Star Fund V (US) v. Barclays Bank PLC, No. 08-11038

Appellate Information

Filed January 11, 2010

Judges

Opinion by Judge Jones

In re: Blast Energy. Servs. Inc., No. 08-20702

In a creditor's appeal from the district court's order denying the creditor's motion for rehearing of its appeal of the bankruptcy court's order confirming the debtor's Chapter 11 reorganization plan, the order is reversed where: 1) the actions the debtor took to substantially consummate the plan before the creditor could obtain a stay did not insulate the plan from an appellate challenge; and 2) 11 U.S.C. section 1127(b) had no relevancy to the appeals at issue, each of which was brought by a creditor and challenger of the plan.

Read In re: Blast Energy. Servs. Inc., No. 08-20702

Appellate Information

Filed January 7, 2010

Judges

Opinion by Judge Jolly

Allen v. McWane Inc., No. 08-41037

In an action under the Fair Labor Standards Act seeking payment for pre- and post-shift time spent donning and doffing protective gear, summary judgment for defendant is affirmed where, at each plant at issue, there existed a custom or practice of not compensating pre- or post- shift time spent putting on and taking off protective gear.

Read Allen v. McWane Inc., No. 08-41037

Appellate Information

Filed January 8, 2010

Judges

Opinion by Judge Stewart

Demahy v. Actavis, Inc., No. 08-31204

In an action based on injuries plaintiff allegedly sustained by taking defendant's drug, a denial of defendant's motion to dismiss is affirmed where the federal regulatory regime governing pharmaceuticals did not preempt state-law failure-to-warn claims against manufacturers of generic drugs.

Read Demahy v. Actavis, Inc., No. 08-31204

Appellate Information

Filed January 8, 2010

Judges

Opinion by Judge Higginbotham

US v. Garza, No. 08-50186

Defendants' convictions of crimes relating to the embezzlement of hundreds of thousands of dollars belonging to an Indian tribal organization and casino are vacated where the district court failed to provide the reasons why it sua sponte transferred the venue of the case.

Read US v. Garza, No. 08-50186

Appellate Information

Filed January 5, 2010

Judges

Opinion by Judge Prado

Trinity Univ. Ins. Co. v. Employers Mut. Cas. Co., No. 08-20532

In an action by a group of insurers claiming that defendant-insurer owed plaintiffs a duty to defend an underlying construction suit, judgment for plaintiffs is affirmed where the underlying complaint's allegations did not clearly and unambiguously fall outside the scope of the policy's coverage.  However, the district court's order denying plaintiffs defense costs in the underlying suit is reversed where plaintiffs satisfied the "common obligation" and "compulsory payment" requirements for a contribution claim under Texas law.

Read Trinity Univ. Ins. Co. v. Employers Mut. Cas. Co., No. 08-20532

Appellate Information

Filed January 4, 2010

Judges

Opinion by Judge Prado