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US Court of Appeals for the Fifth Circuit Opinions United States v. Deckert Docket: 19-40292 Opinion Date: April 8, 2021 Judge: James C. Ho Areas of Law: Criminal Law In this appeal, the Fifth Circuit addressed the application of the two-level reckless endangerment enhancement under U.S.S.G. 3C1.2 to a certain category of offenses known as "groupable" offenses. Defendant objected to the enhancement on the ground that his reckless flight was related only to the second drug trafficking count, and therefore not related to the offense of conviction. The court concluded that, when it comes to certain groupable offenses such as the drug trafficking offense at issue in this case, the court applies the reckless endangerment enhancement even when the defendant is not convicted for the specific crime from which he recklessly flees—so long as the crime for which he is convicted is part of the "same . . . common scheme or plan." The court affirmed the district court's application of the two-level enhancement because the facts of this case demonstrably satisfy the "same common scheme or plan" standard. Read Opinion
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Louisiana Republican Representative introduces bill aimed at legalizing marijuana
www.klfy.com/louisiana/louisiana-republican-representative-introduces-bill-aimed-at-legalizing-marijuana/ United States v. Horton Docket: 18-11577 Opinion Date: April 6, 2021 Judge: James Earl Graves, Jr. Areas of Law: Criminal Law On remand from the Supreme Court in light of Davis v. United States, 140 S. Ct. 1060, 1061 (2020), which requires that unpreserved claims of factual error be reviewed under the full plain error test, the Fifth Circuit again affirmed defendant's sentence because he failed to show that the district court committed a clear or obvious error. The court concluded that, because the district court's implicit finding that the two state offenses were not relevant to the federal offense is plausible in light of the record as a whole, defendant's arguments related to his prior state convictions must fail. Furthermore, the district court's implicit finding that the pending state charges were not relevant to the federal offense is also plausible in light of the record as a whole, and defendant's argument that the district court erred in declining to concurrently run his sentence with the anticipated state sentences fails as well. The court also concluded that the district court did not clearly err by failing to explain its decision to deny defendant's request to run his federal sentence concurrently with the uncharged state sentence. Even assuming the district court's failure to state the reasons for running the sentence consecutively was an error that was clear or obvious, defendant has not shown that the error affected his substantial rights. The court further concluded that any additional explanation of the 18 U.S.C. 3553(a) factors, or the imposition of the maximum 262-month sentence of the guidelines range, would not have changed his sentence. Read Opinion Poll shows support growing in Louisiana for legalizing marijuana www.klfy.com/local/poll-shows-support-growing-in-louisiana-for-legalizing-marijuana/ Louisiana lifting capacity limits on most businesses; bars can serve past 11 p.m. www.houmatimes.com/news/breaking-louisiana-easing-majority-of-covid-restrictions-bars-can/ US Court of Appeals for the Fifth Circuit Opinions United States v. Burney Docket: 20-10529 Opinion Date: March 29, 2021 Judge: Jerry E. Smith Areas of Law: Criminal Law The Fifth Circuit affirmed defendant's sentence for wire fraud, concluding that the district court did not improperly consider defendant's socio-economic status. Rather, the court considered only defendant's "good" childhood and upbringing in justifying the upward variance. In this case, the district court considered that defendant did not grow "up in abject poverty" or "surrounded by violence," and it considered his parents' occupations in law enforcement. The court explained that these considerations do not constitute defendant's socioeconomic status, but are part of his background. Read Opinion Brown v. Chesson Docket: 2020-CC-00730 Opinion Date: March 24, 2021 Judge: Griffin Areas of Law: Civil Procedure, Medical Malpractice, Personal Injury In October 2012, plaintiff Donna Brown filed a complaint with the Louisiana Division of Administration against Dr. Ralph Chesson. Subsequently, she was notified of Dr. Chesson’s status as a qualified state health care provider and a medical review panel was convened. After the medical review panel rendered its opinion in favor of Dr. Chesson, Brown filed a petition for damages solely against Dr. Chesson in 2015. In the petition she alleged medical malpractice during a 2011 surgical procedure and requested service on Dr. Chesson at his office. The Louisiana Supreme Court granted review in this case to determine whether it was sufficient to request service solely on a qualified state health care provider when that individual was the only named defendant in a medical malpractice suit. Specifically, whether plaintiff’s request for service and citation within ninety days from the commencement of this suit on only the defendant physician satisfied the statutory requirements for service on a state employee. The Supreme Court found that the service was sufficient and the court of appeal erred in sustaining the exceptions of insufficiency of citation and service of process. Read Opinion US Court of Appeals for the Fifth Circuit Opinions United States v. Kieffer Docket: 19-30225 Opinion Date: March 19, 2021 Judge: Catharina Haynes Areas of Law: Criminal Law The Fifth Circuit affirmed defendants' convictions for offenses related to their involvement in two armored truck robberies. The court concluded that a third co-defendant's testimony alone was sufficient to support defendants' convictions; sufficient evidence supported Defendant Armstead's conviction for making a false material statement and for being a felon-in-possession of a firearm; the district court did not abuse its discretion in denying defendants' motions for a new trial where defendants failed to identify any inappropriate questions asked to the jury and the court saw no indication that any juror abandoned his or her role as a neutral fact-finder; and Defendant Jerome's conviction under 18 U.S.C. 924(c) was predicated solely on armed bank robbery and thus United States v. Reece, 938 F.3d 630 (5th Cir. 2019), was inapplicable in this case. Read Opinion United States v. Norbert Docket: 20-60106 Opinion Date: March 16, 2021 Judge: W. Eugene Davis Areas of Law: Criminal Law The Fifth Circuit affirmed the district court's grant of defendant's motion to suppress evidence that was critical to establish the Government's charge of possession of a firearm by a convicted felon. The district court determined that police officers did not have reasonable suspicion to conduct the investigatory stop of defendant, and thus the gun and statements to police were suppressed as fruits of the poisonous tree. The court concluded that the district court did not err in finding that the officers did not have reasonable suspicion to conduct an investigatory stop. In this case, the district court found that the informant's tip lacked credibility and reliability because the caller did not provide her name or phone number and had no history of reliable reports of criminal activity, and the police officers did not attempt to contact the management at the Millsaps Apartments to determine who made the phone call. Read Opinion US Court of Appeals for the Fifth Circuit Opinions United States v. Vigil Docket: 20-50192 Opinion Date: March 5, 2021 Judge: Per Curiam Areas of Law: Criminal Law The Fifth Circuit affirmed the district court's imposition of a "no alcohol" special condition after defendant pleaded guilty to one count of conspiracy to transport illegal aliens and one count of transporting an illegal alien. The court concluded that where, as here, the defendant has a history of substance abuse and drug-related arrests such that the court reasonably believes he is an "abuser" of drugs, it is within the district court's discretion to require substance abuse treatment and prohibit the use of intoxicating substances, including alcohol, as special conditions of supervised release—even when there is no evidence in the record of alcohol abuse specifically. Read Opinion United States v. Trevino Docket: 20-40249 Opinion Date: March 3, 2021 Judge: Stuart Kyle Duncan Areas of Law: Criminal Law The Fifth Circuit affirmed defendant's conviction for being a felon in possession of a firearm in violation of 18 U.S.C. 922(g). In this case, the district court instructed the jury that the Government had to prove: (1) defendant knowingly possessed a firearm; (2) he had been convicted previously of a felony; (3) at the time of possession, he knew he had a prior felony conviction; and (4) the firearm possessed traveled in interstate commerce. The court concluded that the jury instructions complied with the rule set forth in Rehaif v. United States, 139 S. Ct. 2191, 2194 (2019). The court explained that the district court clearly instructed jurors as to the relevant principles of law and thus did not abuse its discretion in rejecting defendant's request for a jury instruction. Read Opinion United States v. Diaz Docket: 19-11112 Opinion Date: March 1, 2021 Judge: Jerry Edwin Smith Areas of Law: Criminal Law The Fifth Circuit affirmed defendant's conviction for conspiring to acquire a firearm from a licensed firearms dealer by false or fictitious statement. Defendant and her husband served as illegal straw-purchasers in a weapons-trafficking arrangement. The court concluded that the district court did not plainly err when it instructed defendant as to the elements of 18 U.S.C. 922(a)(6). The court rejected defendant's contention that the reasoning in Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019) -- which held that, in a prosecution under 18 U.S.C. 922(g) and 924(a)(2), the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm -- extends to section 922(a)(6). Plaintiff argued that, to convict for conspiracy to violate section 922(a)(6), the government must prove not only that she knowingly made a false statement but also that she made such statement to a seller she knew to be a licensed dealer. However, the court explained that Rehaif does not compel such a conclusion and that Rehaif expressly limited its application in relation to other portions within subsection (g). The court concluded that, even if Rehaif compels the inclusion of the scienter requirement for which defendant advocates for prosecutions under sections 922(a)(6) and 924(a)(2), that is not the crime of which she pleaded guilty. Furthermore, section 371 does not contain the "knowingly" requirement included in section 924(a)(2). Even after Rehaif, and even for prosecutions under sections 922(a)(6) and 924(a)(2), the court has continued to adhere to its long-held view of what the government must prove under section 922(a)(6). The court also rejected defendant's claim for selective or vindictive prosecution based on her appeal waiver. Finally, the court dismissed defendant's claim of ineffective assistance of counsel. Read Opinion US Court of Appeals for the Fifth Circuit Opinions In Re: Travis Harris Docket: 19-51045 Opinion Date: February 25, 2021 Judge: Per Curiam Areas of Law: Criminal Law Movant seeks authorization to file a successive 28 U.S.C. 2255 motion challenging his conviction and sentence under 18 U.S.C. 924(c)(1)(A) for using and possessing a destructive device during and in relation to a crime of violence. Movant argues that his conviction should be vacated because the predicate offense for his conviction, arson in violation of 18 U.S.C. 844(i), qualified as a "crime of violence" only under the residual clause in section 924(c)(3)(B), which pursuant to United States v. Davis, 139 S. Ct. 2319, 2325–26, 2336 (2019), is unconstitutionally vague. The Fifth Circuit concluded that movant has made a sufficient showing of possible merit to warrant a fuller exploration by the district court, and ordered that the motion be granted. Read Opinion United States v. DeJean Docket: 19-30865 Opinion Date: February 23, 2021 Judge: Stuart Kyle Duncan Areas of Law: Criminal Law The Fifth Circuit affirmed defendant's conviction of mail fraud and making false statements to a bank. In this case, defendant, as justice of the peace, exploited his position to steal thousands of dollars in public funds, which he used for casino gambling. The court rejected defendant's challenge to the district court's decision to seat a juror who, defendant claims, was biased against gamblers. Rather, the court deferred to the district court's broad discretion in assessing the juror's impartiality. In this case, the juror's negative views about gambling implicate nothing like the kind of structural bias against all criminal defendants. Furthermore, the district court affirmatively found the juror's views on gambling (unlike other jurors who were dismissed for cause on that ground) would not prevent her from being impartial. Read Opinion US Court of Appeals for the Fifth Circuit Opinions Echeverry v. Jazz Casino Co., LLC Docket: 20-30038 Opinion Date: February 17, 2021 Judge: Leslie Southwick Areas of Law: Personal Injury The Fifth Circuit withdrew its prior opinion. After plaintiff was injured when a manlift struck her outside Harrah's Casino in New Orleans, a jury found Jazz Casino negligent, assigning it 49% of the fault. Plaintiff was awarded, among other jury awards, $1,000,000 for future pain and suffering. The Casino appealed. The court held that the evidence was sufficient to support the finding of negligence under a negligent hiring theory, operational control theory, and authorization of unsafe work practices theory presented to jurors. The court also held that none of the objected-to evidence was erroneously admitted at trial. However, the court held that the jury's $1,000,000 award for future pain, suffering, mental anguish, disability, scarring, and disfigurement was excessive. Accordingly, the court affirmed the district court's denial of the Casino's motion for judgment as a matter of law and motion for a new trial, vacated the award for future pain and suffering, and remanded for further proceedings. Read Opinion LOUISIANA SUPREME COURT EXTENDS JURY TRIAL MORATORIUM
THROUGH MARCH 31, 2021 www.lasc.org/Press_Release?p=2021-06 US Court of Appeals for the Fifth Circuit Opinions Lefebure v. D'Aquilla Docket: 19-30702 Opinion Date: February 9, 2021 Judge: James C. Ho Areas of Law: Civil Procedure, Civil Rights, Constitutional Law Plaintiff filed suit alleging that Barrett Boeker, her cousin's husband, raped and sexually assaulted her on multiple occasions at his home on the grounds of the Louisiana state prison where he serves as an assistant warden. Plaintiff also alleges that Samuel D'Aquilla, the district attorney, conspired with Boeker and others to prevent her from seeking justice for these crimes. The Fifth Circuit held that, under established precedent, it has no jurisdiction to reach plaintiff's claims against D’Aquilla, because she has no Article III standing. The court explained that Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973), makes clear that "a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution." Accordingly, the court has no choice but to reverse and remand with instructions to dismiss the complaint for lack of subject matter jurisdiction as to D'Aquilla. Read Opinion Governor Edwards extends Modified Phase-2 order for 3 more weeks
www.wwltv.com/article/news/health/coronavirus/3-pm-louisiana-covid-19-vaccine-update-from-gov-edwards/289-85903ebc-24a5-48c4-bd49-23fa9375bf51 United States v. Martinez Docket: 20-20148 Opinion Date: February 8, 2021 Judge: Jennifer Walker Elrod Areas of Law: Criminal Law The Fifth Circuit withdrew its prior opinion and substituted the following opinion. The court vacated defendant's condition of supervised release requiring defendant to "participate in an inpatient or outpatient substance-abuse treatment program" supervised by defendant's probation officer. The court concluded that the option to require inpatient rehabilitation delegates to the probation officer the judicial decision to significantly restrict defendant's liberty during treatment. In this case, because of defendant's short ten-month sentence, the district court should not have delegated the decision to further restrict defendant's liberty during the course of treatment while on supervised release. Therefore, the court remanded for further proceedings. Read Opinion Louisiana Secures Multi-Million Dollar Settlement with McKinsey & Co for Its Role in Opioid Epidemic
www.houmatimes.com/news/ag-louisiana-secures-multi-million-dollar-settlement-with-mckinsey-co-for-its-role-in-opioid-epidemic/ United States v. Winters Docket: 20-30138 Opinion Date: February 3, 2021 Judge: Leslie Southwick Areas of Law: Criminal Law The Fifth Circuit affirmed the district court's decision to reduce defendant's sentence under the First Step Act. The court held that defendant's dual-object conspiracy offense under 21 U.S.C. 846, which was committed before August 3, 2010, is a covered offense under Section 404(a) of the First Step Act. The court also held that the district court had statutory authority under Section 404 to reduce defendant's sentence from 233 months to 180 months. Finally, the court held that neither of Section 404(c)'s limitations apply. Therefore, defendant is eligible for relief under the First Step Act. Read Opinion Haddock v. Tarrant County Docket: 19-11327 Opinion Date: February 1, 2021 Judge: Edith Brown Clement Areas of Law: Civil Rights, Constitutional Law Plaintiff filed suit against seven district judges of Tarrant County's family law courts in their official capacities, District Judge Patricia Baca-Bennett in her personal capacity, and the County under 42 U.S.C. 1983, alleging that she was fired for refusing to support a political candidate and for her husband's political activity. The Fifth Circuit affirmed the district court's dismissal of the suit, holding that plaintiff was in a policymaking and confidential role and thus, under the Elrod/Branti exception, could constitutionally be discharged for the exercise of rights that would otherwise by protected by the First Amendment. The court also held that the district court correctly dismissed plaintiff's claims against the County because plaintiff failed to plead a constitutional violation. Furthermore, because Baca-Bennett did not violate plaintiff's constitutional rights, this is enough for Baca-Bennett to be entitled to qualified immunity. Even if plaintiff's rights had been violated, Baca-Bennett certainly did not have "fair warning that [her] conduct violate[d] a constitutional right." Read Opinion Washington v. Louisiana Docket: 2019-KK-01792 Opinion Date: January 27, 2021 Judge: Per Curiam Areas of Law: Constitutional Law, Criminal Law Defendant Jamal Washington was indicted for racketeering; human trafficking; and conspiracy to commit human trafficking. With regard to racketeering, the indictment alleged that defendant, his codefendants, and other persons, known and unknown, engaged in conduct that furthered a criminal enterprise involved in narcotics distribution and prostitution. Defendant pleaded guilty to racketeering, and the State in exchange dismissed the remaining charges and agreed to forego recidivist sentence enhancement. The district court sentenced defendant in conformity with the plea agreement to serve eight years imprisonment at hard labor. The court of appeal affirmed. Thereafter, defendant sought clarification that the court had not designated the offense as a crime of violence. A minute entry indicated that the district court had designated the offense as a crime of violence. However, no such designation was evident in the sentencing transcript. The district court denied the motion. The court of appeal determined that racketeering was not a crime of violence because it was not enumerated as such in La. R.S. 14:2(B), and because the use (or attempted use) of physical force was not an element of racketeering, as that crime was defined by statute. Therefore, the court of appeal found that the crime was incorrectly designated as a crime of violence in the district court's minute entry. The Louisiana Supreme Court found defendant did not admit to human trafficking when he pleaded guilty to racketeering, and the State dismissed the charge of human trafficking. Defendant also did not admit that he personally performed any violent acts in the factual basis for his guilty plea. Accordingly, the Court affirmed the court of appeal, which reversed the district court’s ruling denying defendant’s motion to correct the sentencing minute entry to reflect that the offense was not designated as a crime of violence, and which remanded to the district court for correction of the minute entry. Read Opinion Louisiana Supreme Court Opinions Lousiana v. Cohen Docket: 2019-K-00949 Opinion Date: January 27, 2021 Judge: Per Curiam Areas of Law: Constitutional Law, Criminal Law Sixteen-year old Donasty Cohen was charged with second-degree murder for the death of her 27-day-old infant son. After trial, a jury found her guilty of manslaughter. The district court sentenced her to serve 17 years imprisonment at hard labor without parole eligibility. The court of appeal affirmed after deleting the restriction on eligibility for parole. On appeal to the Louisiana Supreme Court, defendant argued only that the district court erred in denying her challenge for cause of one prospective juror. In the course of reviewing the record, it became apparent that the verdict in this case was non-unanimous. The sealed jury polling slips contained in the record showed defendant was found guilty of manslaughter by vote of 11-1. The State conceded the verdict was not unanimous. The Court held defendant was entitled to a new trial. The appellate court's judgment was reversed, the conviction and sentence vacated, and the matter remanded fur further proceedings. Read Opinion |
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