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

March 2010 Archives

Evanston Ins. Co. v. Dillard Dept. Stores Inc., No. 09-20261

Evanston Ins. Co. v. Dillard Dept. Stores Inc., No. 09-20261, concerned defendants' appeal from the district court's summary judgment order holding them personally liable to plaintiff for a judgment originally entered against their law firm partnership.  The court of appeals affirmed, holding that 1) the Texas Revised Partnership Act imposed joint and several liability on individual partners for all debts and obligations of a partnership, and no exception applied here; and 2) because plaintiff filed its third-party complaint within the four-year Texas statute of limitations for collecting a debt, its claim was timely.

As the court wrote:  "Damon Chargois and Cletus Ernster formed a law partnership in 2002. They registered it as a limited liability partnership, known as Chargois & Ernster, L.L.P. (CELLP), with the State of Texas in 2002. CELLP prosecuted lawsuits against Dillard Department Stores, Inc. (Dillard's), alleging that Dillard's racially discriminated against its customers. In an attempt to solicit business, CELLP developed a website in June 2003 which included a link using the "Dillard's" name and logo. Clicking this link took visitors to dillardsalert.com, a separate website documenting acts of alleged racial profiling by the department stores."

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US v. Montes, No. 08-10932

In US v. Montes, No. 08-10932, the court of appeals affirmed defendants' bank robbery convictions and sentences, holding that 1) because defendant did not clearly invoke his right to counsel, as required, his post-arrest statements made after his ambiguous request for an attorney were admissible; 2) the district court's jury instructions correctly stated the law and simply instructed the jury to convict on each and every firearm count that it found defendant guilty of in the corresponding odd-numbered bank robbery count; 3) the evidence presented by the government was more than ample to establish defendant's identity as the culprit and therefore sufficient to sustain the verdict; and 4) the district court had no authority to impose a sentence below the statutory minimum on defendant's 18 U.S.C. section 924(c) convictions.

As the court wrote:  "In a scene reminiscent of the long ago days of Butch Cassidy and the Sundance Kid, Jason Montes ("Montes") and Margarito Armijo ("Armijo") were involved in a bank robbery spree. Much like the now infamous characters, their careers as bank robbers were short-lived and came to an end when they were captured by authorities. They now appeal their convictions and Montes also appeals his sentence. Finding no reversible error, we affirm."

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Criminal, Insurance and Product Liability Decisions

Wilson v. Bruks-Klockner Inc., No. 08-30914, involved plaintiffs' appeal from the district court's order denying their motion for leave to amend their complaint to add a non-diverse defendant in order to defeat diversity jurisdiction.  The court of appeals affirmed because the wood chipper that injured plaintiff was an improvement to immovable property for purposes of La. Rev. Stat. Ann. section 9:2772 and thus there was no reasonable basis to predict that plaintiffs could recover on their claims against the non-diverse defendant that installed the device.

US v. Rodriguez, No. 09-20181, concerned a prosecution for conspiracy to sell firearms without a license.  The Fifth Circuit affirmed defendant's sentence following remand, which was greater than the sentence he originally received, on the grounds that 1) the Fifth Circuit would not apply a presumption of vindictiveness when different judges preside over the first and second sentencing; and 2) there was absolutely no evidence that the second judge was reasonably likely to impose a vindictive sentence.

Delta Seaboard Well Servs. Inc. v. Am. Int'l. Specialty Lines Ins. Co., No. 09-20311, involved an action seeking coverage under an excess commercial liability policy issued by defendant regarding "loss of hole" at an oil well.  The court of appeals affirmed summary judgment for defendant, holding that the umbrella policy's "followform" endorsement unambiguously adopted the exclusions of the underlying policy, and that policy's exclusion for loss of hole was dispositive.

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Criminal, Civil Rights, and Personal Injury Cases

In Williams v. Thaler, No. 08-70046, a capital habeas matter, the court of appeals affirmed the denial of a certificate of appealability, on the grounds that 1) the district court lacked jurisdiction to entertain a second or successive habeas application because petitioner failed to move in the appropriate court of appeals for an order authorizing the district court to consider the application; 2) petitioner did not demonstrate that a Texas court would hear the merits of his third application for post-conviction relief on the grounds of unavailability of the factual basis of his claim; 3) petitioner failed to demonstrate that reasonable jurists would debate whether executing petitioner would result in a fundamental miscarriage of justice; and 4) petitioner did not convince the court of appeals, by clear and convincing evidence, that the state's discovery violations prevented him from fully and fairly presenting his case.

Good v. Curtis, No. 09-10341, involved an action claiming that defendant-officer violated plaintiff's rights under the Fourth and Fourteenth Amendments when he manipulated a photographic lineup in an effort to procure a false identification from the victim in a rape case.  The court of appeals affirmed the dismissal of defendant's appeal from the district court's denial of qualified immunity, holding that the district court correctly determined that the genuine issues of fact regarding defendant's conduct were material to the denial of qualified immunity.

Martin v. Halliburton, No. 09-20441, involved an action against affiliated governmental contractors providing logistical support to the United States Army in Iraq based on the death of a US citizen working for the contractors.  The Fifth Circuit dismissed defendants' appeal from the denial of their motion to dismiss for lack of subject matter jurisdiction, holding that 1) defendants failed to make a substantial showing that their allegedly tortious conduct was within the scope of their official duties and was discretionary in the sense that it involved governmental policy-making activities; 2) the court lacked jurisdiction to review the district court's denial of defendants' claim of derivative sovereign immunity; and 3) the combatant activities exception was not subject to a sui generis exemption from the ordinary jurisdictional requirements for denials of preemption claims.

In US v. Williams, No. 09-50059, the court of appeals affirmed defendant's conviction and sentence for forcible assault of a federal officer, on the ground that a misdemeanor conviction under 18 U.S.C. section 111(a)(1) did not require underlying assaultive conduct. However, the judgment is vacated in part where the fact of physical contact with the officers was neither charged in the indictment nor submitted to the jury, in violation of Apprendi.

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Criminal, Education, Employment and Personal Injury Matters

In Gregory v. Thaler, No. 08-20423, the court of appeals affirmed the denial of petitioner's habeas petition, holding that 1) petitioner's conclusory statements regarding the content of the uncalled witnesses testimony were insufficient to demonstrate ineffective assistance; and 2) in any event, it was unlikely that either uncalled witness would have been available to testify on petitioner's behalf.

US v. Texas, No. 08-40858, involved defendants' appeal from the district court's order holding that defendant State of Texas denied students with limited-English proficiency (LEP students) equal educational opportunities in Texas public schools, thereby violating the court's longstanding injunctive order and Section 1703(f) of the Equal Educational Opportunities Act (EEOA).  The court of appeals reversed, on the grounds that 1) even if, as the trial court suggested, intervenors raised new facts suggesting a violation of the injunction's broader principle of equal educational opportunities, there was no finding of statewide de jure segregation of Mexican Americans in Texas, and thus the lower court erred in finding that intervenors could establish a violation; 2) the issues raised by intervenors' EEOA claim had not been properly addressed in the absence of individual school districts as parties; 3) reasonable minds could differ over what comparative method was most effective to determine whether language barriers were being overcome, and there was no evidence that the district court's preferred method of comparison was better than that of the State's; and 4) there was no finding nor sufficient evidence that individual districts were ignoring LEP underperformance on individual campuses or sufficient evidence of resulting actual harm to such campuses and their students.

Carmona v. Southwest Airlines Co., No. 08-51175, involved an action claiming that the termination of plaintiff's employment violated Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA).  The court of appeals reversed partial judgment for defendants, on the grounds that 1) there was sufficient evidence for a reasonable jury to find that plaintiff was an "individual with a disability" within the meaning of the ADA, because there was sufficient evidence for a reasonable jury to conclude that he had an impairment, psoriatic arthritis, that substantially limited his major life activity of walking; 2) there was sufficient evidence that defendant's own actions reflected that attendance on scheduled days was not required to qualify for the position of flight attendant; and 3) a reasonable jury could have found defendant's proffered explanation for plaintiff's discharge was false and that the true reason was his disability.

Wells v. SmithKline Beecham Corp., No. 09-50244, concerned an action claiming that defendant pharmaceutical manufacturer failed to warn plaintiff that one of its drugs could cause him to become a compulsive gambler.  The court of appeals affirmed summary judgment for defendant, holding that plaintiff's expert testimony did not establish a causal relationship between the drug and gambling.

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Criminal Matters

In US v. Scher, No. 08-20269, the court of appeals affirmed defendant's conviction and sentence for wire fraud for using unauthorized waiver codes to obtain illegal discounts on airline flights, holding that 1) defendant's argument, that the indictment was constructively amended because the court's definition of "scheme to defraud" on one occasion included the language "or other things of value," ignored the balance of the instructions, which were on the whole correct; and 2) defendant did not provide rebuttal evidence that the district court deemed sufficient to undermine the information in the presentence report.

In US v. Rodriguez, No. 08-50989, the court of appeals affirmed defendant's conviction for possessing an unregistered sawed-off shotgun with an obliterated serial number, on the ground that it was reasonable for the officers to conduct a protective sweep beyond the living room area of defendant's trailer home, even though they had not specifically been told that there were other people in the residence, because the police's first priority in responding to a domestic disturbance report was to secure the scene and create a safe environment in which to investigate the report.

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Bankruptcy and Immigration Matters

In Claudio v. Holder, No. 08-61060, the Fifth Circuit denied petitioner's petition for review of the BIA's final order removing petitioner from the U.S., on the ground that a petitioner cannot exhaust his claims by raising all of them in a notice of appeal to the BIA, but addressing only some in a supporting brief, and petitioner failed to exhaust the claim that he was not removable.

As the court wrote:  "[O]nce a petitioner elects in his notice of appeal to file a brief, that brief becomes the operative document through which any issues that a petitioner wishes to have considered must be raised. And, although the regulations governing briefs to the BIA do not indicate what must be included in the brief, see 8 C.F.R. § 1003.3(c), the regulations also do not limit the BIA's discretion to address only those issues actually raised in the brief."

In re: Condor Ins. Ltd., No. 09-60193, concerned an action by persons appointed Joint Official Liquidators of a Nevis corporation in a Nevis bankruptcy proceeding, alleging Nevis law claims against a related U.S. entity.  The court of appeals reversed the district court's affirmance of the bankruptcy court's order dismissing the complaint, holding that a bankruptcy court has jurisdiction to offer avoidance relief under foreign law in a Chapter 15 bankruptcy proceeding.

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Willbros RPI, Inc. v. Continental Cas. Co., No. 08-20665

Willbros RPI, Inc. v. Continental Cas. Co., No. 08-20665, involved an action against an insurer seeking a declaratory judgment that defendant was required to provide defense and indemnity.  The court of partially appeals affirmed the district court's order of partial summary judgment for plaintiff, on the grounds that 1) conduct that clearly fell outside of the professional services exclusion provides an independent but for cause of the injury; and 2) indemnity issues must await resolution of the underlying suit.  However, the Fifth Circuit reversed the order in part, on the ground that defendant-insurers' "Other Insurance" provisions conflicted and liability for defense of the underlying suit should thus be apportioned on a pro rata basis.

As the court wrote:  "Even assuming that CNA were correct as to the requisite showing, Exxon's complaint alleges damages that could have occurred even if there was no error in the approval of the plans. For example, even if the survey and its approval were perfect in every respect and the subcontractors simply failed to aim the directional drill correctly, Exxon could still recover. Put differently, conduct that clearly falls outside of the professional services exclusion provides an independent but for cause of the injury."

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Sullivan v. Leor Engy. LLC, No. 06-20867, involved an action for breach of an employment contract.  The court of appeals affirmed the dismissal of the complaint on the grounds that 1) under Texas law, a contract for a stated term longer than one year is not taken out of the statute of frauds when there is a mere possibility of termination within one year due to contingent events set forth in the contract, including termination by a party; 2) payment of a salary for services rendered was insufficient to take the alleged agreement out of the statute of frauds because the services were fully explained by the salary without supposing any additional consideration; and 3) plaintiff's equitable estoppel claim failed because he did not allege reliance damages.

In US v. Seale, No. 07-60732, the court of appeals affirmed defendant's kidnapping conviction based on a 1964 offense, on the grounds that 1) although more than forty years elapsed from the date of the alleged crime to defendant's indictment, this fact alone did not establish a due process violation; 2) the evidence was clearly sufficient to support defendant's conviction even without an allegedly inadmissible confession; and 3) defendant produced no evidence that would support a conclusion that an alleged coconspirator expressly waived the attorney-client privilege and thus that the coconspirator's attorney could testify.

Raby v. Livingston, No. 08-20772, concerned a 42 U.S.C. section 1983 action alleging that Texas' method for lethal injection violated plaintiff death row inmate's right to be free of cruel and unusual punishment.  The court of appeals affirmed summary judgment for defendants on the grounds that 1) difficulty in starting an IV in the arm of inmates who had destroyed their veins through drug use was not indicative of a failure to adhere to the execution procedure; 2) there were no constitutional issues with regard to the monitoring of the inmate's appearance for visible signs that the inmate was awake following the sodium thiopental injection; and 3) plaintiff failed to establish that the Texas lethal injection protocol created a demonstrated risk of severe pain.

Schexnayder v. Hartford Life & Accident Ins. Co., No. 08-30538, involved an ERISA action claiming that defendant-insurer wrongly denied plaintiff disability benefits.  The court of appeals affirmed summary judgment for plaintiff on the merits, on the grounds that defendant's decision was procedurally unreasonable because the Social Security Administration (SSA) determined that plaintiff was fully disabled and unable to perform any work, but defendant did not address the SSA award in any of its denial letters.  However, the court reversed the district court's order granting plaintiff attorney's fees, holding that the legal questions in this case were much closer than the district court credited, and the district court therefore abused its discretion in assessing attorneys' fees against defendant.

Price v. Johnson, No. 09-10389, concerned an appeal from the district court's order remanding to state court an action seeking an order to take an investigatory deposition of a Congresswoman.  The court of appeals dismissed the appeal because the court of appeals would only review remand orders if the district court affirmatively stated a non-28 U.S.C. section 1447(c) ground for remand.

Acevedos v. Allsup's Convenience Stores Inc., No. 09-10417, involved a class action against defendant-employer, seeking payment of unpaid wages and overtime under the Fair Labor Standards Act.  The court of appeals affirmed the district court's ruling that plaintiffs' claims were improperly joined, holding that district courts have considerable discretion to deny joinder when it would not facilitate judicial economy and when different witnesses and documentary proof would be required for plaintiffs' claims.  However, the Fifth Circuit reversed the dismissal of the action on the ground that misjoinder was not an appropriate ground for dismissal.

Qureshi v. US, No. 09-20317, involved plaintiff's appeal from a sua sponte order of the district court requiring him to obtain the court's permission before filing suit in any federal court in the state of Texas.  The court of appeals vacated the order, on the ground that the district court entered the injunction without giving any prior notice to plaintiff and without offering him any opportunity to oppose the injunction or be heard on its merits.

Jones v. Cain, No. 09-30174, involved habeas petition in a murder prosecution.  The court of appeals affirmed the grant of the petition, holding that the state court unreasonably applied clearly established federal law by holding that no Sixth Amendment violation occurred when a jury heard recorded testimony from a deceased witness to a murder.  However, the court vacated the order conditionally dismissing the indictment, on the ground that a habeas court can act solely on the body of the prisoner, and thus it ordinarily lacks the power to order the dismissal of an indictment.

Catlin Syndicate Ltd. v. Imperial Palace of Miss., Inc., No. 09-60209, involved a declaratory judgment action by an insurer seeking a declaration that the policy did not cover certain Hurricane Katrina-related losses.  The court of appeals affirmed summary judgment for plaintiff on the ground that the proper method for determining loss under the business-interruption provision was to look at sales before the interruption rather than sales after the interruption.

Pendergest-Holt v. Certain Underwriters at Lloyd's, No. 10-20069, involved an action by various insureds, each faced with civil and criminal allegations that they engaged in a massive Ponzi scheme, seeking reimbursement of defense costs under a directors' and officers' liability policy from the policy's underwriters.  The court of appeals affirmed an injunction prohibiting defendant-insurers from withholding defense funds, on the ground that a "determination in fact" under the policy, absent language unambiguously pointing to the underwriters as the decisionmakers, required a judicial act.  However, the court of appeals reversed the order in part, holding that the district court needed to decide whether the underwriters were responsible thereafter for reimbursement of the executives' defense costs.

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US v. McMillan, No. 08-31148

In US v. McMillan, No. 08-31148, the court of appeals dealt with defendant's wire and mail fraud convictions and sentences.

As described by the court: "This case concerns a scheme by defendants Barry Scheur and Robert McMillan to fraudulently represent the financial condition of The Oath for Louisiana, Inc., a Louisiana-licensed HMO. The Oath, as an HMO or plan, collected premiums and insured the medical expenses of its subscribers. The Government charged that the defendants devised a scheme to defraud and obtain money or property by filing false financial reports with the Louisiana Department of Insurance indicating that the HMO met minimum statutory net worth requirements in order to ensure the continued operation of the plan and
the collection of premiums and management fees at a time when The Oath did not satisfy state requirements."

The circuit court affirmed the judgment below, holding that 1) the superseding indictment did not broaden the charges against the defendants; 2) Cleveland's requirement that the object of the fraud be actual money or property in the hands of the victim was satisfied; 3) the district court gave an immediate curative instruction, in response to objections during the prosecutor's closing remarks, that the government bore the burden of proof and the defendants need not testify or prove anything; and 4) the district court did not clearly err by finding that defendants' business would have suffered catastrophic losses had it been closed rather then permitted to continue in operation and that the amount of loss attributable solely to the defendants could not be reasonably calculated.

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Criminal and Tax Cases

In US v. Valencia, No. 08-20546, the court of appeals affirmed defendants' wire fraud convictions arising from alleged efforts to manipulate natural gas markets, on the grounds that 1) the extensive, incriminating in-court testimony provided by a witness and others, in conjunction with inculpatory, properly admitted exhibits, heavily dampened the magnitude of whatever prejudicial effect an erroneously admitted whistle-blower letter had upon the jury; 2) because a witness's knowledge and analysis were derived from duties he held at defendants' employer, his opinions were admissible as testimony based upon personal knowledge and experience gained while employed there; 3) the district court did not err in allowing the government's expert to testify about the tendency of defendants' false trade reports to affect the indices published by Inside FERC and NGI.

In Duffie v. US, No. 08-20708, a tax refund action, the court of appeals affirmed summary judgment for defendant for the reasons stated by the district court, namely that 1) while a taxpayer's subjective business purpose or profit motive may be relevant to the sham transaction inquiry, the lack of a subjective profit motive is not required to assess interest at the enhanced rate under 26 U.S.C. section 6621(c); and 2) a partner may not relitigate the tax court's determination that the partnership transactions resulting in the adjustments were factual or economic shams, that is, tax-motivated transactions as defined in section 6621(c).

In US v. Thomas, No. 09-30426, the court of appeals vacated defendant's firearm possession sentence, holding that 1) the PROTECT Act amendment to 18 U.S.C. section 3583(e)(3) did not apply retroactively; and 2) defendant served 24 months of imprisonment upon the first revocation of his supervised release, and, therefore, could not be sentenced to a further term of imprisonment upon the second revocation of his supervised release under the version of section 3583(e)(3) applicable to him.

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Antitrust and Criminal Matters

In US v. Banegas, No. 08-10915, the court of appeals reversed defendant's drug conspiracy conviction, on the ground that the trial court failed to state particularized reasons for requiring defendant to be shackled while defending himself pro se.

In US v. York, No. 09-40309, the court of appeals affirmed defendant's conviction and sentence for arson and carrying a destructive device, holding that 1) there was sufficient evidence that the fire at issue was intentionally set; 2) the district court did not abuse its discretion by denying defendant's motion for a mistrial, because defendant failed to show that he was prejudiced by a jury note requesting to hear again defendant's confession; and 3) evidence that defendant had harmed his girlfriend went to issues other than defendant's character because it explained that she withheld information from the police due to her fear of defendant's threats.

Wampler v. Southwestern Bell Tel. Co., No. 09-50208, involved an antitrust action on behalf of a putative class of all residents of multiple dwelling units (MDUs) in five states who were limited to voice, video, and Internet service by contracts with defendant AT&T.  The court of appeals affirmed the dismissal of the complaint, on the ground that a single MDU (or MDUs in the aggregate) could not plausibly be considered a relevant geographic market for antitrust purposes.

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Restitution Order Upheld in Audita Querela Proceedings

In US v. Miller, No. 08-11186, the court of appeals affirmed dismissal of defendant's petition for audita querela challenging a restitution order resulting from his conviction for conducting a monetary transaction with criminally-derived funds and evading income tax.

As the court wrote:  "On August 1, 2003, defendant-appellant, Frederick Charles Miller (Miller), pleaded guilty to one count of conducting a monetary transaction with criminally-derived funds and one count of evading income tax. He was sentenced to concurrent terms of ninety-six and sixty months' imprisonment and to a three-year period of supervised release. He was also ordered to pay restitution in the amount of $1,485,074.24. After his direct appeal and several collateral attacks failed, Miller filed a petition for a writ of audita querela with the district court on September 26, 2008, seeking to have the amount of his restitution order reduced. The district court dismissed the petition."

The Fifth Circuit found that, although 18 U.S.C. section 3663A provided that, when a criminal restitution order was issued, it must be offset by "the value . . . of any part of the property that is returned," this language should not be read to require district courts to formally modify restitution orders every time a defendant subsequent to the order makes a payment on his obligation.

Furthermore, if it still exists, the writ of audita querela can only be applied to rectify a judgment which, though correct when rendered, has since become infirm. Thus, as all parties to this case agree that the district court's restitution order was initially correct, and because the statute does not require the order to be modified every time a subsequent payment is made on a restitution obligation, there is no infirmity in defendant's judgment for a writ of audita querela to rectify. 

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The Fifth Circuit decided matters concerning an award of attorney's fees as a sanction, a suit against off-duty police officers under 42 U.S.C. section 1983, and various criminal issues.

In US v. Xu, No. 09-20074, the court of appeals vacated defendant's conviction for trafficking in counterfeit drugs, on the ground that a rational juror could not have found beyond a reasonable doubt that the Zyprexa mark, allegedly misappropriated by defendant, was registered on the USPTO's principal register.

In US v. Key, No. 08-51299, the Fifth Circuit affirmed defendant's sentence for intoxication manslaughter, holding that 1) a sentencing court may incorporate into its statement of reasoning the arguments of the parties before it; 2) disparity in sentencing, standing alone, was insufficient to render a sentence substantively unreasonable; and 3) the Texas offense of Intoxication Manslaughter was properly assimilated into federal law under the Assimilative Crimes Act.

Howard v. St. Germain, No. 09-30642, involved an appeal from the district court's order assessing attorney's fees against defendants based on their improper removal of the case.  The Fifth Circuit affirmed, holding that the district court did not abuse its considerable discretion in taxing costs and attorney's fees to defendants because an objectively reasonable basis for removal did not exist.

Bustos v. Martini Club Inc., No. 09-50079, was a 42 U.S.C. section 1983 action based on a late-night confrontation with several off-duty police officers.  The court of appeals affirmed the dismissal of the complaint, holding that 1) the election of remedies provisions in Tex. Civ. Prac. & Rem. Code 101.106 applied to state law intentional tort claims against a governmental unit and its employees; 2) plaintiff did not allege facts to suggest that the officers who assaulted him misused or abused their official power; and 3) the bystander officers had no constitutional duty to prevent the alleged assault.

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In US v. Scroggins, No. 08-10966, a defendant appealed his conviction for possession of a firearm by a convicted felon claiming "that the government obtained evidence necessary to his conviction in violation of the Fourth Amendment and that his conviction is unconstitutional in light of the Second Amendment."

However, the circuit court affirmed, finding that: 1) the district court did not clearly in err in finding that defendant's fiancee consented, at least implicitly, to the officers entering defendant's home; 2) the officers were justified in conducting a protective sweep upon entry due to potential danger; and 3) if a protective sweep for potentially dangerous individuals located such an individual, police could detain and frisk the subject, and, if necessary, temporarily handcuff or otherwise reasonably immobilize him.

Furthermore, the Second Amendment argument fell short as "...those arguments are foreclosed by our circuit's existing precedent. Prior to Heller, this circuit had already recognized an individual right to bear arms, and had determined that criminal prohibitions on felons (violent or nonviolent) possessing firearms did not violate that right....Dicta in Heller states that the opinion should not "be taken to cast doubt on long-standing prohibitions on possession of firearms by felons," 128 S. Ct. at 2816-17, and we have reaffirmed our prior jurisprudence on this point since Heller was decided."

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Age Discrimination Ruling in Jackson v. Cal-Western Packaging Corp.

Jackson v. Cal-Western Packaging Corp., No. 09-20411, was an age discrimination action in which the district court granted summary judgment for defendant-employer.

As the court wrote:  "Jackson brought suit against Cal-Western for age discrimination. His claim primarily relied on a remark Phelps allegedly made to another coworker in 2006 that Jackson was an "old, gray-haired fart" and that the coworker would be in charge when Jackson retired. Cal-Western moved for summary judgment. The district court ruled that Jackson had alleged a prima facie case of discrimination and that Cal-Western had offered a legitimate, nondiscriminatory reason for firing him, but that Jackson had failed to show that there was a fact issue as to whether Cal-Western's reason for firing him was pretextual."

The court of appeals affirmed, holding that 1) plaintiff did not show that a comment by a coworker was proximate in time to the termination or related to the employment decision, and thus the comment could not qualify as direct evidence; and 2) plaintiff's assertion of innocence alone did not create a factual issue as to the falsity of defendant's proffered reason for terminating him.

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Criminal and Immigration Matters

The Fifth Circuit decided two criminal matters and one immigration case.

Wooten v. Thaler, No. 07-70044 was a capital habeas matter involving late-arriving DNA evidence used by the state to strengthen its case.  The court of appeals affirmed the denial of the petition, holding that 1) when the actual physical evidence is in full view, there is no constitutional demand that the prosecution warrant any analyses of that evidence as final -- as the best and last attempts; and 2) there was no loss of effectiveness under the Sixth Amendment as the strength of the state's case grew, just a lessening of the defendant's chance to prevail.

In US v. Williamson, No. 09-10079, the court of appeals affirmed defendant's cocaine possession sentence on the grounds that 1) for a U.S.S.G. section 3E1.1(b) reduction, the government must first determine that defendant assisted authorities by entering a timely guilty plea, the government must file a motion with the court to that effect, and then the court must decide that the defendant meets the section 3E1.1(b) criteria; and 2) the district court kept its considerations to those contained in section 3E1.1(b) -- the efficient use of the government's and the court's resources and the timeliness of the plea.

Orosco v. Napolitano, No. 09-40004, was an action seeking a writ of habeas corpus to compel defendants to issue him a law enforcement certification showing his cooperation with law enforcement under 28 U.S.C. section 2241.  The Fifth Circuit affirmed the dismissal of the complaint on the ground that the language of section 1184(p) made it abundantly clear that the decision to issue a law enforcement certification is a discretionary one.

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D&J Tire Inc. v. Hercules Tire & Rubber Co., No. 09-30275, was an action by a minority shareholder for breach of fiduciary duty arising out of defendant-executive's failure to disclose that defendant corporation was in talks to be acquired when the executive served as a mandatary on plaintiff's behalf to redeem his shares.  The district court granted summary judgment for defendant.

The court of appeals vacated the judgment, holding that: 1) because Louisiana's prescription statute did not bar plaintiff's rescission claim, the district court needed to determine whether plaintiff could prove that defendant's directors failed to disclose a material fact; 2) because defendant's directors were acting in their official capacity when redeeming plaintiff's stock, Connecticut courts would impose a fiduciary duty to disclose material facts in this situation; and 3) there was no reason, under Louisiana law to apply another prescriptive period merely because defendant was also CFO of the corporation when the claim was based on his duties as mandatary.

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