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$215M in BP oil spill money to restore Louisiana marshes apnews.com/article/john-bel-edwards-new-orleans-oil-spills-gulf-of-mexico-environment-2f2b2f7c7017d5ce133b8406ccced4fe
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US Court of Appeals for the Fifth Circuit Opinions United States v. Gozes-Wagner Docket: 19-20157 Opinion Date: September 28, 2020 Judge: Carl E. Stewart Areas of Law: Criminal Law, White Collar Crime The Fifth Circuit affirmed defendant's 120 month sentence imposed after she was convicted of conspiracy to commit health care fraud and conspiracy to commit money laundering. The court held that defendant failed to show that the district court imposed an unconstitutional trial penalty on her at sentencing and rejected her claim that she was treated more harshly than her co-conspirators because she chose to go to trial rather than to plead guilty. In this case, her only direct co-conspirator was charged with different crimes that carried different statutory maximum sentences. The court also held that defendant's sentence was not procedurally unreasonable where the district court did not abuse its discretion by improperly presuming the Guidelines range to be reasonable; the district court considered the need to avoid unwarranted sentencing disparities; and defendant failed to show a reasonable probability that an explanation by the district court for running the sentences consecutively would have changed her total punishment. Finally, the court held that defendant's sentence was not substantively unreasonable and upheld the district court's restitution order, rejecting procedural and constitutional challenges. Read Opinion Louisiana moves to Phase 3, but some casino and bar owners are still disappointed www.theadvocate.com/baton_rouge/news/business/article_00edd75a-f472-11ea-b935-27cd4cab6f41.html US Court of Appeals for the Fifth Circuit Opinions Arnold v. Williams Docket: 19-30555 Opinion Date: September 24, 2020 Judge: Jennifer Walker Elrod Areas of Law: Civil Rights, Constitutional Law Plaintiff filed suit against defendant under 42 U.S.C. 1983 for violations of various constitutional rights and under Louisiana tort law. In this case, after defendant approached, questioned, and reached to grab plaintiff outside of his home, plaintiff fled, fell off a fence, and dislocated his shoulder. The Fifth Circuit reversed the district court's dismissal of the unreasonable search claim and remanded for the district court to consider qualified immunity before proceeding to the merits of the case. The court stated that details in the complaint make plausible the allegation that defendant's search of the curtilage of plaintiff's home was unreasonable insofar as it infringed on plaintiff's reasonable expectation of privacy and exigent circumstances were lacking. However, the court affirmed the district court's dismissal of the unreasonable seizure claim. The court affirmed the district court's dismissal of plaintiff's remaining section 1983 claims, holding that plaintiff failed to state a false arrest/false imprisonment claim, because he failed to plausibly allege that his ultimate arrest was false; failed to state a claim for malicious prosecution under section 1983 because, as the district court correctly observed, there is no freestanding right under the Constitution to be free from malicious prosecution; and failed to state a claim for a violation of procedural and substantive due process because resort to a generalized remedy under the Due Process Clause is inappropriate where a more specific constitutional provision provides the rights at issue. Furthermore, plaintiff failed to allege a claim under Louisiana law for infliction of emotional distress. Finally, the court affirmed the district court's grant of summary judgment and the three evidentiary rulings appealed by plaintiff. Read Opinion Edwards Concerned Legislature Has Called for Second Special Session
www.houmatimes.com/news/edwards-concerned-legislature-has-called-for-second-special-session/ Franklin v. Regions Bank Docket: 19-30684 Opinion Date: September 18, 2020 Judge: Edith Brown Clement Areas of Law: Contracts After plaintiffs contracted with Regions Bank for it to manage, as their agent, their mineral interests in a large tract of land, Regions signed a lease extension with a third party, intending to extend the lease for only a small part of the property. However, the lease was unlimited and applied to the entire tract of land. Region's unintentional mistake cost plaintiffs tens of millions of dollars. The Fifth Circuit reversed the district court's dismissal of plaintiffs' action for breach of contract against Regions, holding that Louisiana's ten year statute of limitations period for contract claims applies to plaintiffs' suit. In this case, plaintiffs alleged that Regions breached their contracts by acting negligently. The court stated that, under Louisiana law, they had the choice to sue Regions for this alleged breach in tort or in contract. Because plaintiffs chose contract, their claim is subject to the ten year statute of limitations. Accordingly, the court remanded for further proceedings. Read Opinion Terrebonne Parish School Board extends superintendent’s contract www.houmatimes.com/news/just-in-terrebonne-parish-school-board-extends-superintendents-contract/ United States v. Kendrick Docket: 19-30375 Opinion Date: September 14, 2020 Judge: Carl E. Stewart Areas of Law: Criminal Law The Fifth Circuit denied the petition for panel rehearing and withdrew its prior panel opinion, substituting the following opinion. Defendant was convicted of conspiracy to distribute cocaine base and possession of a firearm by a convicted felon. The court held that defendant was not entitled to an evidentiary Franks hearing and the district court correctly denied defendant's motion to suppress. In this case, even excising the alleged falsehoods and omissions, the Article III wiretap affidavit still included many other facts that incriminated defendant, giving rise to probable cause. The court also held that the evidence was sufficient to support defendant's drug conspiracy conviction. Finally, the court upheld the district court's imposition of two sentencing enhancements for possessing a firearm in furtherance of drug distribution and defining defendant as a career offender under the Armed Career Criminal Act. Read Opinion Louisiana v. Quinn Docket: 2019-K-00647 Opinion Date: September 9, 2020 Judge: Per Curiam Areas of Law: Constitutional Law, Criminal Law In 2015, fishermen in Cocodrie, Louisiana noticed a large Rubbermaid tote floating near a dock. The next day, they called the police after they spotted clothing and a human arm sticking out of it. Inside the tote, police found a decomposing body, which was later identified as Robbie Coulon, the victim and a lifelong friend of defendant Simon Quinn. The victim lived in defendant’s Houma apartment, in apparent violation of the rental agreement. Friction between the two developed as the victim repeatedly ignored defendant’s instructions to refrain from doing anything that could draw the attention of the property manager to the victim’s unauthorized presence. In addition, the victim pawned some of defendant’s belongings, including an Xbox belonging to defendant’s son. Defendant would ultimately be indicted for the second degree murder of Coulon, and for obstruction of justice by tampering with evidence of Coulon’s murder. A jury found defendant guilty as charged; he was sentenced to life imprisonment at hard labor without eligibility for parole (for murder), and a consecutive term to 50 years imprisonment for second-felony offender obstruction of justice. A divided court of appeal reversed the conviction for second degree murder and affirmed the conviction for obstruction. Defendant appealed, but finding no reversible error, the Louisiana Supreme Court affirmed the ruling of the court of appeal, which reversed defendant’s conviction for second degree murder, and affirmed defendant’s conviction for obstruction of justice, his habitual offender adjudication, and his sentence for obstruction. Read Opinion Is Louisiana headed to Phase 3? Current Phase 2 order expires on Friday www.houmatimes.com/news/is-louisiana-headed-to-phase-3-current-phase-2-order-expires-on-friday/ US Court of Appeals for the Fifth Circuit Opinions Adams v. Alcolac, Inc. Docket: 19-40899 Opinion Date: September 8, 2020 Judge: Per Curiam Areas of Law: Personal Injury Plaintiffs, primarily former U.S. military personnel who were injured by Saddam Hussein's use of mustard gas during the Gulf War, seek to hold Alcolac, Inc. liable for these injuries because, they allege, it illegally provided the government of Iraq with thiodiglycol, which was then used to create mustard gas. Plaintiffs' claims have been foreclosed in previous litigation except for two: (1) a claim under the Justice Against Sponsors of Terrorism Act (JASTA) and (2) a civil-conspiracy claim under Texas law. The Fifth Circuit affirmed the district court's grant of summary judgment to Alcolac, holding that the first claim fails because JASTA does not provide a cause of action for injuries caused by acts of war. Furthermore, the civil-conspiracy claim fails because plaintiffs have not demonstrated that Alcolac or anyone else committed a tort in furtherance of the alleged conspiracy. The court explained that, because plaintiffs' JASTA and civil-conspiracy claims fail, they do not have valid underlying claims. Therefore, their Texas Uniform Fraudulent Transfer Act claims also fail. Read Opinion Will Louisiana enter Phase 3? Gov. Edwards expected to decide Tuesday www.wafb.com/2020/09/07/will-louisiana-enter-phase-three-edwards-expected-decide-tuesday/ US Court of Appeals for the Fifth Circuit Opinions United States v. Franco Docket: 20-60473 Opinion Date: September 3, 2020 Judge: Jennifer Walker Elrod Areas of Law: Criminal Law The Fifth Circuit affirmed the district court's denial of defendant's motion for reduction of sentence under the First Step Act. The court held that defendant is not excused from the statute's textual requirement that she file a request with the Bureau of Prisons before filing her motion in federal court. The court held that the statute's requirement that a defendant file a request with the BOP before filing a motion in federal court is a nonjurisdictional claim-processing rule. The court joined three other circuits in holding that the statutory requirement is mandatory. The court noted that defendant remains free to file, in the first instance, a request with the Bureau of Prisons. Read Opinion United States v. Beaulieu Docket: 19-30609 Opinion Date: August 31, 2020 Judge: Andrew S. Oldham Areas of Law: Criminal Law The Fifth Circuit vacated defendant's conviction for felony criminal contempt. The court first held that Federal Rule of Criminal Procedure 42(a)(3) does not apply to this case because the particular conduct that led to defendant's contempt charge was his refusal to testify, rather than an instance of "disrespect toward or criticism of" Chief Judge Brown. Therefore, the district court did not abuse its discretion in denying defendant's motion to recuse under 28 U.S.C. 455(a). In this case, the government concedes that an Assistant United States Attorney (AUSA) made numerous improper remarks, but contends that defendant failed to show that the prosecutorial misconduct prejudiced him. The court held, however, that the magnitude of the misconduct was overwhelming; the district judge did little to intervene or offer cautionary instructions; and it is impossible to separate the AUSA's misconduct from the other evidence against defendant. Therefore, defendant has shown a constitutional error and that he is entitled to relief under any standard of review. Read Opinion |
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