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US Court of Appeals for the Fifth Circuit Opinions United States v. Beard Docket: 20-20116 Opinion Date: October 22, 2021 Judge: W. Eugene Davis Areas of Law: Criminal Law The Fifth Circuit affirmed the district court's denial of defendant's motion to suppress drugs found in a package he mailed via the United States Postal Service from Houston, Texas, to Hammond, Louisiana. Defendant argued that his Fourth Amendment rights were violated, and an unlawful seizure occurred, when the package was rerouted back to Houston, which took five days, before law enforcement took further investigative steps to confirm their suspicion. However, the court agreed with the district court that the U.S. Marshal's choice to reroute the package back to Houston was reasonable and prudent under the facts of this case. The court also agreed that the five days the package was in transit from Hammond back to Houston, as well as the two days it took to obtain the warrant after the package returned to Houston, were not unreasonably long under the circumstances. In this case, the package had extensive connections to Houston and the U.S. Marshal requested that the package be rerouted to Houston because he believed that there was no difference in the time it would take to obtain a warrant in Houston versus Hammond. Read Opinion
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US Court of Appeals for the Fifth Circuit Opinions Terkel v. Centers for Disease Control and Prevention Docket: 21-40137 Opinion Date: October 19, 2021 Judge: Per Curiam Areas of Law: Civil Procedure The Fifth Circuit granted appellants' voluntary motion to dismiss this appeal involving the CDC's nationwide eviction moratorium under Federal Rule of Appellate Procedure 42(b). The eviction moratorium prevented landlords from exercising their state law eviction rights to prevent the further spread of COVID-19. After considering the record and the parties' oral arguments, the court found it unnecessary to decide mootness. Instead, the court granted the motion to dismiss the appeal "on terms . . . fixed by the court." Read Opinion AG Landry: Contractor, FEMA, and SBA Fraud are Growing Concerns for Law Enforcement
www.houmatimes.com/news/ag-landry-contractor-fema-and-sba-fraud-are-growing-concerns-for-law-enforcement/ Public Notice from Terrebonne Parish DA: “118 Armour Drive will not be in service for the foreseeable future”
www.houmatimes.com/news/public-notice-from-da-118-armour-drive-will-not-be-in-service-for-the-foreseeable-future/ Louisiana Supreme Court Opinions
Zapata v. Seal Docket: 2020-CC-01148 Opinion Date: September 30, 2021 Judge: Griffin Areas of Law: Civil Procedure, Personal Injury The Louisiana Supreme Court granted review in this case to examine the interplay between two provisions of the Louisiana Code of Civil Procedure in the context of partial summary judgment. The specific issue presented was whether a trial court, having granted defendants’ motion for partial summary judgment based on plaintiffs’ failure to timely file an opposition, could later vacate that judgment when the plaintiffs produce an expert affidavit based on evidence that was previously available in advance of the original hearing. The underlying action arose out of a motor vehicle accident in which J. Benjamin Zapata was struck from behind by a vehicle operated by Stephen Seal and owned by Diversified Well Logging, Inc. (collectively “DWL”). Mr. Zapata and his wife filed suit against DWL and its insurer alleging both new injuries and aggravation of preexisting lower back injuries sustained in a prior motor vehicle accident. Dr. Olawale Sulaiman, who performed lower back surgery on Mr. Zapata after the accident, opined in his deposition that he did not causally relate that surgery to the subject accident. DWL moved for partial summary judgment seeking to dismiss the Zapatas’ claim that the lower back surgery was necessitated by the accident. Twelve days before the hearing, the Zapatas filed an opposition, attaching a July 2018 report by Dr. Mohammad Almubaslat to support the assertion that the accident aggravated Mr. Zapata’s preexisting lower back injuries and necessitated the surgery. DWL replied, arguing that because the opposition was untimely, the attachments should be stricken and the Zapatas’ counsel precluded from presenting oral argument. At the hearing the trial court agreed with DWL and granted partial summary judgment in its favor. The Zapatas moved to vacate the partial summary judgment, attaching the affidavit by Dr. Almubaslat, but executed on May 8, 2019. DWL opposed on the grounds that it would be improper for the trial court to disregard the time limitations set forth in La. C.C.P. art. 966(B) and consider evidence that was previously available to the Zapatas in July 2018, prior to the original hearing on the motion for partial summary judgment. The trial court vacated its prior ruling, concluding the Zapatas’ motion to vacate was authorized by La. C.C.P. art. 1915(B) and found a genuine issue of material fact existed with respect to the issue of medical causation based on the “newly submitted affidavit of Dr. Mohammad Almubaslat.” The Supreme Court found the trial court was within its discretion in vacating its prior ruling. Read Opinion Jung v. Starr Surplus Lines Insurance Co. Dockets: 20-30140, 20-30175 Opinion Date: September 24, 2021 Judge: Jerry E. Smith Areas of Law: Insurance Law The Fifth Circuit reversed the district court's grant of summary judgment in favor of the insurer in an insurance coverage dispute regarding flood damage to the property at issue. The insureds interpreted the flood deductible in the policy as covering most of the damage to the property, but the district court determined that the policy is unambiguous and adopted the insurer's interpretation. The court applied Louisiana law and concluded that the policy is ambiguous. The court explained that the predominant use of "Total Contract Value" to denote the value of the entire project indicates that the policy, read in its entirety, does not provide clarity regarding the term "total insured values at risk . . . as respects flood." The court remanded for the district court to determine whether extrinsic evidence resolves the ambiguity. Read Opinion Ida survivors can meet with FEMA representatives in Golden Meadow at Disaster Recovery Center opening Friday www.houmatimes.com/news/ida-survivors-can-meet-with-fema-representatives-in-golden-meadow-at-disaster-recovery-center-opening-friday/ US Court of Appeals for the Fifth Circuit Opinions Texas v. United States Docket: 21-40618 Opinion Date: September 15, 2021 Judge: Gregg Costa Areas of Law: Government & Administrative Law, Immigration Law The Fifth Circuit granted in part and denied in part the United States' motion for a stay pending appeal of the district court's nationwide preliminary injunction preventing the United States from relying on immigration enforcement priorities outlined in memos from DHS and ICE. On Inauguration Day, January 20, 2021, the Acting Secretary of DHS issued a memo announcing that the Department would undergo a comprehensive review of enforcement policies, announcing DHS's interim enforcement priorities, and directing an immediate 100-day pause on removals. ICE issued a memo on February 18, 2021 that incorporates the same three interim priorities. The court did not see a strong justification for concluding that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 detention statutes override the deep-rooted tradition of enforcement discretion when it comes to decisions that occur before detention, such as who should be subject to arrest, detainers, and removal proceedings. Therefore, the United States has shown a likelihood of prevailing on appeal to the extent the preliminary injunction prevents officials from relying on the memos' enforcement priorities for nondetention decisions. The court also concluded that the remaining factors also support a partial stay. The court stated that the injunction will go into effect to the extent it prevents DHS and ICE officials from relying on the memos to refuse to detain aliens described in 8 U.S.C. 1226(c)(1) against whom detainers have been lodged or aliens who fall under section 1231(a)(1)(A) because they have been ordered removed. The court stayed the injunction pending appeal in all other respects including the reporting requirements. Read Opinion US Court of Appeals for the Fifth Circuit Opinions HTC Corp. v. Telefonaktiebolaget LM Ericsson Dockets: 19-40566, 19-40643 Opinion Date: August 31, 2021 Judge: Jennifer Walker Elrod Areas of Law: Contracts, Intellectual Property, International Law, Patents The European Telecommunications Standards Institute (ETSI) established many global standards for 3G, 4G, and 5G cellular communications technology. ETSI members that own standard-essential patents must provide “an irrevocable undertaking in writing that [they are] prepared to grant irrevocable licenses on fair, reasonable and non-discriminatory (FRAND)” terms. Ericsson holds patents that are considered essential to the ETSI standards and agreed to grant licenses to other companies to use its standard-essential patents on FRAND terms. HTC produces mobile devices that implement those standards; to manufacture standard-compliant mobile devices, HTC has to obtain a license to use Ericsson’s patents. Ericsson and HTC have previously entered into three cross-license agreements for their respective patents. Negotiations to renew one of those agreements failed. HTC filed suit, alleging that Ericsson had breached its commitment to provide a license on FRAND terms and had failed to negotiate in good faith. The jury found in favor of the defendants. The district court entered a separate declaratory judgment that the defendants had affirmatively complied with their contractual obligations. The Fifth Circuit affirmed, rejecting challenges to the district court’s exclusion of HTC’s requested jury instructions, its declaratory judgment that Ericsson had complied with its obligation to provide HTC a license on FRAND terms, and the exclusion of certain expert testimonial evidence as hearsay. Read Opinion US Court of Appeals for the Fifth Circuit Opinions
United States v. Sandoval Martinez Docket: 20-11016 Opinion Date: August 27, 2021 Judge: Costa Areas of Law: Criminal Law The Fifth Circuit vacated defendant's sentence imposed after he pleaded guilty to a drug conspiracy charge. In this case, authorities discovered cocaine and other drugs in the back of defendant's tobacco shop, as well as $12,424 in cash, which the authorities treated as proceeds from cocaine transactions rather than legitimate tobacco sales or to any of the other various drugs found in the shop. This resulted in a higher recommended sentencing range than defendant would have otherwise received. Therefore, the court concluded that it was clear error to treat all of the cash as cocaine proceeds and the error was not harmless. The court explained that, although the district court sentenced defendant well below the Guidelines range calculated by Probation, it did not indicate that it would have imposed the same sentence even if it erred in treating all the seized cash as drug proceeds. The court remanded for resentencing. Read Opinion Dickson v. United States Docket: 19-40932 Opinion Date: August 23, 2021 Judge: Stephen Andrew Higginson Areas of Law: Personal Injury Plaintiff appealed the district court's dismissal of his negligence and intentional tort claims alleging that Bureau of Prison (BOP) officials caused him a variety of harm while he was incarcerated at USP Beaumont. The Fifth Circuit affirmed the district court's dismissal of plaintiff's negligence claims based on lack of subject matter jurisdiction. The court concluded that the district court fairly construed plaintiff's complaint as asserting that BOP officials acted negligently in transferring him to USP Beaumont and in housing him in the general population despite his concerns for his safety, and correctly held that those challenged actions are encompassed by the discretionary function exception. The court reversed the district court's dismissal of plaintiff's intentional tort claims for lack of jurisdiction and remanded for the district court to determine, with respect to whether the law enforcement proviso applies, whether the BOP officials were acting within the scope of their employment when committing the alleged torts. Read Opinion Voter Registration Week Begins August 23
www.houmatimes.com/news/voter-registration-week-begins-august-23/ Louisiana lawmakers are unhappy with the way some criminal justice savings were used
lailluminator.com/2021/08/16/louisiana-lawmakers-are-unhappy-with-the-way-some-criminal-justice-savings-were-used/ Attorney General: Louisiana, Alabama Launch Initiative to Gather Info on Social Media Censorship
www.houmatimes.com/news/attorney-general-louisiana-alabama-launch-initiative-to-gather-info-on-social-media-censorship/ LPSO to conduct DWI, seat belt checkpoints on Friday
www.houmatimes.com/news/lpso-to-conduct-dwi-seat-belt-checkpoints-on-friday/ HCB Financial Corp. v. McPherson Docket: 20-50718 Opinion Date: August 4, 2021 Judge: Edith Brown Clement Areas of Law: Civil Procedure, White Collar Crime In a previous lawsuit, HCB won a $2 million judgment against Lee McPherson for a defaulted loan. After unsuccessful attempts to collect, HCB filed suit against McPherson, seeking treble damages under the Racketeer Influenced and Corrupt Organizations Act (RICO). One month after HCB filed suit, McPherson registered the $2 million judgment plus interest with the first court. The district court dismissed the suit with prejudice, concluding that McPherson satisfied the underlying judgment and thus HCB suffered no injury. The Fifth Circuit joined its sister circuit and held that a plaintiff may not recover treble damages sustained in a RICO action after the underlying debt is satisfied. In this case, because HCB recovered its lost debt shortly after filing suit, the court concluded that the debt is no longer lost. The court explained that HCB points to a speculative investment return even though it received post-judgment interest, and thus it has no legal claim to lost investment opportunity. Therefore, HCB cannot plead an essential statutory element of a RICO offense. Because no amendment can cure that pleading defect, the district court did not abuse its discretion by dismissing the federal claims with prejudice or declining supplemental jurisdiction over the state-law claims. Read Opinion Louisiana 2021 Regular Session HOUSE BILL NO. 652
To amend and reenact R.S. 40:966(C)(2)(a), (d), (e)(i) and (f)(i), relative to marijuana; to 3 provide relative to penalties for possession of marijuana; to amend criminal penalties 4 for a first or subsequent conviction of possession of marijuana; to provide relative 5 to penalties for the possession of certain amounts: www.legis.la.gov/legis/ViewDocument.aspx?d=1235328 New Marijuana Decriminalization Law Goes Into Effect Today
www.houmatimes.com/news/new-marijuana-decriminalization-law-goes-into-effect-today/ United States v. Vargas Docket: 20-40040 Opinion Date: July 28, 2021 Judge: Higginbotham Areas of Law: Criminal Law Defendant Joel Vargas was convicted of two counts of transporting stolen goods in interstate or foreign commerce and one count of conspiracy to do the same based on his leadership of a crew of burglars, which targeted commercial tire stores. Defendant Angelica, Joel's wife, was convicted of conspiracy to transport stolen goods based on her role as the crew's paymaster and alternate burglary driver. Joel was also convicted of witness tampering based on evidence that he threatened the father of the crew member who cooperated with law enforcement in Joel's arrest. The Fifth Circuit affirmed defendants' convictions, concluding that defendants failed to show that any constructive amendment to their indictment affected their substantial rights because the trial record contained evidence supporting a guilty verdict on the crime actually charged in the indictment. Furthermore, in such cases, the court declined to exercise its discretion to grant relief. The court also concluded that the evidence was sufficient to support defendants' convictions for transportation of stolen goods in foreign commerce, conspiracy to transport stolen goods in interstate commerce, and witness tampering. Read Opinion US Court of Appeals for the Fifth Circuit Opinions Harbor Healthcare System, LP v. United States Docket: 19-20624 Opinion Date: July 26, 2021 Judge: Per Curiam Areas of Law: Criminal Law Harbor filed a pre-indictment motion under Rule 41(g) of the Federal Rules of Criminal Procedure, seeking return of documents seized by the United States in five searches of Harbor locations and offices. The district court had exercised discretionary jurisdiction for a time to oversee the implementation of protective process to screen Harbor's privileged information. However, the district court declined to exercise its equitable jurisdiction further and dismissed the case. After determining that it has jurisdiction to consider this appeal, the Fourth Circuit concluded that the district court erred in its assessment of the pre-indictment harm resulting from an allegedly unlawful seizure of privileged material. The court explained that the district court erred in its understanding of the four factors under Richey v. Smith, 515 F.2d at 1243–44, in determining whether to grant a pre-indictment motion for return of property and therefore abused its discretion by declining to further exercise its equitable jurisdiction. Accordingly, the court reversed the district court's judgment and remanded for further proceedings. Read Opinion How will Louisiana's historic veto override session work? Even lawmakers aren't quite sure.
www.theadvocate.com/baton_rouge/news/politics/legislature/article_f7f8e004-e8db-11eb-8ee5-2f253ced5c37.html United States v. Hudgens Docket: 19-50628 Opinion Date: July 16, 2021 Judge: Edith Brown Clement Areas of Law: Criminal Law The Fifth Circuit affirmed defendant's sentence imposed after he pleaded guilty to both counts of a two-count indictment for conspiracy to possess with intent to distribute heroin and methamphetamine. The court concluded that defendant's sentence was not substantively unreasonable and the district court did not abuse its discretion by imposing a 240-month sentence on each count, to run concurrently. In this case, the district court did not abuse its discretion in considering the 18 U.S.C. 3553(a) sentencing factors, including the fact that death resulted from defendant's offense; the upward variance fell within the statutory maximum; and the district court did not improperly consider that the drugs defendant provided the deceased caused her death. Read Opinion Here Are The Full Details Of The New Federal Marijuana Legalization Bill
www.marijuanamoment.net/here-are-the-full-details-of-the-new-federal-marijuana-legalization-bill-from-chuck-schumer-and-senate-colleagues/ Federal Appeals Court rules banning handgun sales to citizens under 21 violates Second Amendment
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