U.S. Fifth Circuit: February 2010 Archives
U.S. Fifth Circuit - The FindLaw 5th Circuit Court of Appeals Opinion Summaries Blog

February 2010 Archives

Copyright and Felon Voting Rights Cases

The Fifth Circuit decided one case involving copyright infringement and another concerning Mississippi's constitutional provision concerning voting by felons.

Maverick Recording Co. v. Harper, No. 08-51194, was a copyright infringement action based on unlawful file sharing.  The court of appeals affirmed partial summary judgment for plaintiff, holding that 1) the uncontroverted evidence was more than sufficient to compel a finding that defendant had downloaded the files; and 2) defendant infringed plaintiffs' exclusive right to reproduce their copyrighted works by downloading the 37 audio files to her computer without authorization.  Moreover, the court reversed the partial denial of summary judgment for plaintiffs on the ground that lack of legal sophistication could not overcome a properly asserted 17 U.S.C. 402(d) limitation to the innocent infringer defense.

Young v. Hosemann, No. 08-60941, concerned an action claiming that section 241 of the Constitution of the State of Mississippi granted plaintiff-felons the right to vote in presidential elections.  The court of appeals affirmed the dismissal of the complaint, holding that the plain language of the provision did not support plaintiffs' argument.

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Civil Rights and Criminal Rulings

Today, the Fifth Circuit decided one case concerning a public school teacher's First Amendment rights, and another involving a drug conviction.

In Fairchild v. Liberty Indep. Sch. Dist., No. 08-40833, plaintiff claimed that defendants violated her First Amendment rights after firing her from a public school teacher position because they did not allow her at a school board meeting to present her side of her troubles with a teacher for whom she had been an aide.  The district court granted summary judgment to defendants.

The Fifth Circuit affirmed on the ground that the board's policies were both viewpoint-neutral and reasonable in light of the forum's purpose.

In US v. Banuelos-Romero, No. 09-10465, defendant appealed his drug possession conviction.

The court of appeals affirmed, holding that the officer who searched defendant's vehicle had probable cause to search the car, and this allowed the officer to continue the detention until he confirmed or dispelled the suspicion that there was contraband hidden in the vehicle.

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Court Addresses Another Insurance Dispute Arising from Hurricane Katrina

The case of Versai Mgmt. Corp. v. Clarendon Am. Ins. Co., No. 08-30874 was an action against an insurer brought after a number of apartment buildings managed by plaintiff sustained damage during Hurricane Katrina in 2005. The case involved contract claims for unpaid insurance proceeds as well as claims that defendants violated Louisiana law by failing to promptly settle claims and by misrepresenting the terms of their policies. The district court granted summary judgment to defendants.

However, as the Fifth Circuit wrote:  "Versai [plaintiff] argues that the district court was not at liberty to grant summary judgment based on its 'failure' to support its August 23 proofs of loss with additional documentation where the insurance policy created no such obligation.  We agree."

The court of appeals affirmed in part because, under the policy at issue, plaintiff was not entitled to costs of compliance until after it had incurred the expenses of code compliance.  However, the court reversed in part, on the grounds that: 1) the district court was not at liberty to grant summary judgment based on plaintiff's "failure" to support its proofs of loss with additional documentation where the insurance policy created no such obligation; and 2) there was an issue of material fact suggesting that plaintiff was entitled to compensation for business-interruption losses.

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Claimed Violation of Right to Self-Representation Rejected in US v. Long

In US v. Long, No. 09-10003, defendant was convicted after trial for willfully failing to file tax returns.  Defendant appealed on grounds that he was denied the right to represent himself and that the trial court erred in denying his pro se motion to dismiss based on the Speedy Trial Act.

Regarding the primary issue of self-representation, the Fifth Circuit wrote:  "Long appeared with [an] Assistant Federal Public Defendant ... who informed the court that she had requested the pretrial hearing because Long had said 'he fired our office' and 'essentially said that he wished to represent himself' and that she believed that accordingly he should 'be advised of Faretta warnings by this court.' Thereafter, at the request of Long, [the public defendant] moved for a continuance of the trial which Judge Cummings denied. Judge Cummings accordingly then asked the defendant whether he wished to represent himself. Long responded, 'No, sir.'"

The court of appeals affirmed, holding that 1) did not timely, clearly, and unequivocally assert it, and any attempts to assert that right were waived by his own obstructionist behavior combined with his negative answer to the district court's inquiry whether he desired to represent himself; and 2) defendant waived his rights under the Speedy Trial Act because he failed to properly put the issue before the trial court.

Related Resources

On February 18, the Fifth Circuit posted eleven opinions on bankruptcy, civil rights, criminal, employment, injury, interstate comity and securities issues on its site.

In Archdiocese of Milwaukee Supporting Fund, Inc. v. Halliburton Co., No. 08-11195, plaintiffs appealed from the denial of class certification in a securities fraud class action.  The Fifth Circuit affirmed, holding that, because plaintiff presented no evidence that a false, non-confirmatory positive statement by defendant caused a positive effect on the stock price, plaintiff had to show 1) that an alleged corrective disclosure causing the decrease in price was related to the false, nonconfirmatory positive statement made earlier, and 2) that it was more probable than not that it was this related corrective disclosure, and not any other unrelated negative statement, that caused the stock price decline.

Johnson v. DiversiCare Afton Oaks LLC, No. 08-20827, involved an action by a nursing home employee who allegedly suffered retaliation due to reporting a violation of law.  The district court granted summary judgment for defendants.  The court of appeals affirmed, holding that an employee only had a cause of action under Texas Health and Safety Code 242.133(b) if he or she made a "report" of a violation of law, and plaintiff did not do so.

US v. Martin, No. 07-30815

Defendant's cocaine base possession sentence is affirmed where the district court had jurisdiction to modify a sentence under 18 U.S.C. section 3582(c)(2) while an appeal of the original sentence was pending before the court of appeals.

Read US v. Martin, No. 07-30815

Appellate Information

Filed February 5, 2010

Judges

Opinion by Judge Jolly

Williamson Pounders Architects PC v. Tunica County Miss., No. 09-60063

In an action by an architectural firm against a Mississippi county and its governing board under a contract that made Tennessee law controlling, summary judgment for defendant is affirmed where the parties' choice of Tennessee law was overriden by Mississippi's public policy that minute entries were required to make contractual agreements with counties.

Read Williamson Pounders Architects PC v. Tunica County Miss., No. 09-60063

Appellate Information

Filed February 9, 2010

Judges

Opinion by Judge Southwick

US v. Castillo-Estevez, No. 09-40096

Defendant's sentence for illegal reentry into the U.S. after deportation is affirmed where the application of the 2008 Sentencing Guidelines to defendant was not a plain-error violation of the Ex Post Facto Clause because case law revealed a reasonable dispute regarding the ex post facto implications of retroactive application of the advisory guidelines.

Read US v. Castillo-Estevez, No. 09-40096

Appellate Information

Filed February 9, 2010

Judges

Opinion by Judge Jones

Marathon A.G. Holding Ltd. v. CMS Enters. Co., No. 09-20034

In an action for breach of contract based on defendant's refusal to indemnify plaintiff for its payments to the Republic of Equatorial Guinea in settlement of tax audits, summary judgment for defendant is affirmed where: 1) the plain language of the parties' agreement, informed by the parties' prior negotiations and the usage evidence, clearly established that defendant was required to indemnify plaintiff only for taxes paid for income that was earned before January 1, 2002; and 2) plaintiff's separate claim for indemnification for payment of withholding taxes was time-barred.

Read Marathon A.G. Holding Ltd. v. CMS Enters. Co., No. 09-20034

Appellate Information

Filed February 10, 2010

Judges

Opinion by Judge Feldman

Kleinman v. City of San Marcos, No. 08-50960

In a First Amendment challenge to the application of a junked-vehicle ordinance designed to eliminate eyesores and promote public order to a wrecked vehicle used as an art exhibit, judgment for defendant-city is affirmed in part where the junked-vehicle ordinance was not intended to regulate "speech" at all, but was a content-neutral health and safety ordinance, and was reasonably tailored to achieve the city's legitimate interests with only incidental restriction on protected expression. However, the judgment is vacated in part where the district court improperly ordered plaintiff to comply with a municipal court order.

Read Kleinman v. City of San Marcos, No. 08-50960

Appellate Information

Filed February 10, 2010

Judges

Opinion by Judge Jones

In re: TransTexas Gas Corp., No. 08-41128

In two related cases involving a bankrupt corporate debtor, rulings rejecting (i) a claim by corporate debtor's former CEO that the severance payments he received from the company were not fraudulent transfers, and (ii) a claim by a trustee in a related matter that the estate was covered under a policy issued by appellee-insurer, are affirmed where: 1) the severance payments made to the CEO after his dismissal were obligations incurred by debtor within two years of its petition date and thus constituted fraudulent transfers; 2) debtor did not receive reasonably equivalent value for the payments to the CEO; and 3) the CEO's repayment of the amounts received did not constitute an insurable "Loss" under the insurance policy.

Read In re: TransTexas Gas Corp., No. 08-41128

Appellate Information

Filed February 10, 2010

Judges

Opinion by Judge Southwick

US v. Harris, No. 08-11121

Defendants' sentences for bank fraud and conspiracy to traffic in or use unauthorized access devices are affirmed in part where: 1) the district court did not clearly err in calculating one defendant's intended loss as being equal to the credit limits of the credit cards she compromised; and 2) a defendant's sentence may be enhanced where his crime recklessly jeopardizes property, even if that property survives the crime intact.  However, one defendant's sentence is vacated in part where the district court erred by enhancing his sentence four levels based on its finding that his offense had involved fifty or more victims, because only eight of the sixty-three financial institutions identified as victims by the district court suffered an actual loss.

Read US v. Harris, No. 08-11121

Appellate Information

Filed February 9, 2010

Judges

Opinion by Judge Garwood

US v. John, No. 08-10459

Defendant's conviction for conspiracy to commit access device fraud is affirmed where "authorized access" or "authorization" under 18 U.S.C. section 1030(a)(2) could encompass limits placed on the use of information obtained by permitted access to a computer system and data available on that system, at least when the user knew or reasonably should have known that he or she was not authorized to access a computer and information obtainable from that access in furtherance of or to perpetrate a crime.  However, defendant's sentence is vacated where the district court erred in failing to apply a three-level reduction in defendant's sentence for partial completion of the offense and there was a reasonable probability that, but for the district court's misapplication of the Sentencing Guidelines, defendant would have received a lesser sentence.

Read US v. John, No. 08-10459

Appellate Information

Filed February 9, 2010

Judges

Opinion by Judge Owens

US v. Heth, No. 09-50119

Defendant's conviction for failure to register in accordance with the Sex Offender Registration and Notification Act (SORNA) is affirmed where defendant was required to register under SORNA regardless of whether SORNA's administrative requirements had been implemented by Colorado or Texas.

Read US v. Heth, No. 09-50119

Appellate Information

Filed February 4, 2010

Judges

Per Curiam

US v. Sauseda, No. 08-51219

Defendant's sentence for aiding and abetting an attempt to manufacture methamphetamine is vacated where, although it offered evidence that defendant's offense involved the emission of noxious fumes, the government did not offer evidence showing how the emission was unlawful, and thus the toxic emission enhancement under the Sentencing Guidelines did not apply.

Read US v. Sauseda, No. 08-51219

Appellate Information

Filed February 4, 2010

Judges

Per Curiam

US v. Jones, No. 08-30725

Defendant's crack cocaine distribution sentence is affirmed where, although defendant became eligible for re-sentencing in light of an amendment passed by the Sentencing Commission, defendant failed to show that the court's error affected his substantial rights, and thus did not meet the plain error standard.

Read US v. Jones, No. 08-30725

Appellate Information

Filed February 4, 2010

Judges

Opinion by Judge Davis

Dillon v. Rogers, No. 08-30419

In a 42 U.S.C. section 1983 action alleging excessive force by prison guards, summary judgment for defendants is vacated where plaintiff never pursued a prison grievance process to the "second step" required under La. Admin. Code tit. 22 section 325(G)(4)(a), but the district court failed to permit the parties to conduct discovery concerning exhaustion and the availability of administrative remedies.

Read Dillon v. Rogers, No. 08-30419

Appellate Information

Filed February 4, 2010

Judges

Opinion by Judge Benavides

US v. Reagan, No. 08-11006

Defendant's conviction and sentence for theft of public money are affirmed where: 1) the "allowable unit of prosecution" under 18 U.S.C. section 641 was each individual transaction in which government money was received, even if the transaction was part of an overarching scheme; and 2) defendant failed to preserve his challenge to the jury instructions.

Read US v. Reagan, No. 08-11006

Appellate Information

Filed February 4, 2010

Judges

Opinion by Judge King

Addicks Servs., Inc. v. GGP-Bridgeland, LP, No. 09-20155

In an action by a contractor seeking damages for extra work and delay costs incurred performing land improvement for a residential development, summary judgment for defendant is affirmed where the waivers executed by the parties extended unambiguously to release plaintiff's claims for extra work and, accordingly, course of performance evidence could not be used to reinterpret the language of release.

Read Addicks Servs., Inc. v. GGP-Bridgeland, LP, No. 09-20155

Appellate Information

Filed February 8, 2010

Judges

Opinion by Judge King

US v. Smith, No. 08-61098

Defendant's sentence for attempting to possess with intent to distribute cocaine base is affirmed where: 1) there was no basis for the court of appeals to make mandatory a sentencing reduction under the cocaine base Sentencing Guidelines; and 2) the district court properly considered defendant's prison disciplinary record in deciding to deny relief under 18 U.S.C. section 3582(c)(2).

Read US v. Smith, No. 08-61098

Appellate Information

Filed February 3, 2010

Judges

Opinion by Judge Garza

US v. Self, No. 08-40624

Defendant's bank robbery conviction and sentence are vacated where the district court was not permitted to reject the plea agreement and then re-impose it on the parties with terms that it found acceptable.

Read US v. Self, No. 08-40624

Appellate Information

Filed February 3, 2010

Judges

Opinion by Judge Garza

US v. Jackson, No. 07-30981

Defendants' drug conspiracy and firearm possession convictions and sentences are affirmed where: 1) had the officers had reason to question the validity of the state search warrant pursuant to which they searched defendant's residence, or had there been no state search warrant, the officers nonetheless could have secured a search warrant and conducted the search that yielded the disputed evidence; 2) there was no Apprendi error where the district court determined the quantity of drugs under the preponderance of the evidence standard and sentenced defendant to a term of imprisonment within the statutory range authorized by the verdict; and 3) the particular attributes of a firearm were not actual elements of the firearm possession offense.

Read US v. Jackson, No. 07-30981

Appellate Information

Filed February 3, 2010

Judges

Opinion by Judge Garza