Justia U.S. 5th Circuit Court of Appeals Opinion Summaries

Articles Posted in October, 2011
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This action arose from a complaint filed in 2006 with the Mississippi Commission on Judicial Performance against a then Mississippi Supreme Court Justice. The justice was ultimately acquitted of various criminal charges and his wife plead guilty to tax evasion. After the cessation of the criminal prosecution, the prosecuting U.S. Attorney, relative to plaintiff, filed a complaint with the Commission. Accordingly to the justice and his wife, the U.S. Attorney unlawfully attached their tax and other financial records obtained during the criminal investigation to the complaint. Plaintiff served as a member of the Commission and participated in the Commission's investigation of the justice. Although the Commission dismissed the complaint, counsel to the justice and his wife sent plaintiff two letters threatening legal action based on his role in the investigation. Plaintiff responded by filing a complaint seeking a declaratory judgment of immunity from suit for conduct arising out of his duties with the Commission. The justice's wife subsequently filed counterclaims against plaintiff, asserting various federal and state law causes of action arising, in relevant part, from plaintiff's alleged disclosure of the Commission's confidential investigation. The court held that the judgment of the district court, insofar as it denied immunity to plaintiff for his filing of the declaratory relief action, was reversed, and the case remanded to the district court for further proceedings.

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Petitioners petitioned for review of Order 720, which adopted the Posting Rule, and 720-A of the Federal Energy Regulation Commission (FERC). Petitioners contended that the Posting Rule exceeded the authority granted to FERC by the Natural Gas Act of 1938 (NGA), 15 U.S.C. 717, in violation of section 10(e) of the Administrative Procedures Act (APA), 5 U.S.C. 706(2)(C), which prohibited any agency action "in excess of statutory jurisdiction, authority, or limitations." The court held that all attempts by FERC to show that section 1(b) did not limit the scope of section 23 of the NGA were unavailing and the NGA unambiguously precluded FERC from issuing the Posting Rule so as to require wholly intrastate pipelines to disclose and disseminate capacity and scheduling information. Therefore, under Chevron step one analysis, FERC had no statutory authority to promulgate Order 720 and 720-A and thus, violated section 10(e) of the APA. Accordingly, the petitions for review were granted and the orders vacated.

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This case stemmed from petitioners', the sole shareholders of two Subchapter S corporations, India Music and HRI, engagement in the business of importing and selling music, making those entities related parties under Internal Revenue Code, 26 U.S.C. 267. At issue was whether the Commissioner effected a change in a taxpayer's method of accounting for the purposes of section 481 when he required that taxpayer to postpone a deduction from gross income pursuant to section 267(a)(2). The court held that because it concluded that a section 267(a)(2) disallowance constituted a change in a taxpayer's method of accounting under section 481, the court affirmed the judgment of the Tax Court.

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Defendant appealed a jury verdict awarding damages to its former employee for breach of a stock options contract. Defendant argued that the jury instruction misstated the governing Korean law, that the jury's verdict relied on legally insupportable evidence, and that the district court applied the wrong law when determining attorney's fees. The court held that defendant failed to prove that the district court abused its discretion in excluding a requirement of coercion or intimidation from the jury instructions. Moreover, the district court did not abuse its discretion in denying defendant's motion for a new trial on damages. Finally, the award of attorney's fees would be permitted under either Texas or Korean law. Therefore, the judgment of the district court was affirmed.

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Defendant Peter Bernegger and his co-defendant were charged in a six-count indictment with various counts of mail fraud, wire fraud, bank fraud, and conspiracy for inducing investors to invest money in two start-up companies based on several misrepresentations. Bernegger was convicted of mail and bank fraud and was sentenced to seventy months in prison and ordered to pay restitution of approximately $2 million. The Fifth Circuit affirmed as modified, holding (1) the district court did not err in refusing to sever the bank fraud count from the mail and wire fraud counts; (2) the district court did not violate the Sixth Amendment or abuse its discretion in denying Bernegger the opportunity to cross-examine a witness about an alleged discrepancy in Bernegger's testimony; (3) the district court did not plainly err by not declaring a mistrial sua sponte based on the format of the indictment; (4) there was sufficient evidence to support the jury's verdict finding Berneggar guilty of mail fraud; and (5) because the district court clearly erred in calculating the total loss amount, the restitution amount was incorrect and was therefore modified to reflect the correct total loss amount of $1,725,000.

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After defendant was acquitted by a jury of one count of conspiracy to possess with the intent to distribute marijuana, the Government sought to retry him on an additional possession count on which the jury could not reach a verdict. Defendant argued that the jury's decision to acquit him on the conspiracy charge necessarily meant that the jury decided that he was not the person driving a recreational vehicle (RV) containing over 1,000 pounds of marijuana, and thus that he was not in possession of the marijuana. Defendant claimed that double jeopardy barred his retrial on the possession charge under principles of issue preclusion because the Government would need to prove that he drove the RV in order to convict him of the possession charge. Alternatively, defendant argued that retrial on the possession charge was barred by double jeopardy because possession was a lesser-included offense of conspiracy to possess. The court held that defendant's issue-preclusion argument, while colorable, failed to establish that the issue he sought to foreclose was necessarily decided in his prior trial. Therefore, it did not amount to double jeopardy to retry him for possession of marijuana. Accordingly, the district court's denial of defendant's motion to dismiss the indictment was affirmed.

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Plaintiff brought suit under the Americans with Disabilities Act (ADA), 42 U.S.C. 12102, against defendant for failing to provide a reasonable employment accommodation in consideration of his diabetes. The district court entered summary judgment in favor of defendant. The court held that because plaintiff's diabetes treatment regiment required only modest dietary and lifestyle changes, no genuine issue existed as to whether his impairment substantially limited his eating. Therefore, the district court properly concluded that plaintiff was not disabled within the meaning of the ADA. The court also held that, based upon the record evidence, no reasonable juror could conclude that defendant was unwilling to, in good faith, participate in an interactive process to reasonably accommodate plaintiff's needs. Accordingly, the judgment was affirmed.

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Defendants, Roberto Zamora and Fletcher Freeman, Jr., appealed from their convictions related to drug trafficking. Zamora and Freeman separately raised a number of challenges to their convictions. The court held that the district court did not err when it admitted the evidence found at 2118 Fulton Street; the district court did not commit reversible error when it denied Zamora's proposed venue instruction; and the district court's denial of Zamora's motion for a judgment of acquittal on his conviction for possessing a firearm in furtherance of a drug trafficking offense was not erroneous. The court also held that the district court did not err when it denied Freeman's motion for judgment of acquittal. Therefore, because the court found no reversible error in the rulings of the district court, the district court's judgments and defendants' sentences were affirmed.

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The court considered these cases jointly without oral argument because they raised a single issue: whether defendants, who were convicted inter alia of possession with intent to distribute crack cocaine, were entitled to be sentenced according to the Fair Sentencing Act of 2010 (FSA), Pub. L. No. 111-220, 124 Stat 2372, when their illegal conduct preceded the FSA but their sentencing proceedings occurred post-enactment. The court held that the penalties described by the FSA did not apply to federal criminal sentencing for illegal conduct that preceded the FSA's enactment. Therefore, the sentences imposed by the district courts in each of these cases were affirmed.

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Defendant was convicted by a jury of possessing with intent to distribute methamphetamine and sentenced to 172 months' imprisonment. Defendant raised several issues on appeal. The court held that defendant did not clearly invoke his right not to be questioned without an attorney present and therefore, the district court did not err by denying his motion to suppress; the police did not deceive defendant into waiving his constitutional right not to be questioned without an attorney present; the district court did not abuse its discretion by giving the flight instruction to the jury; the government had shown that the error in admitting certain testimony was harmless beyond a reasonable doubt; the government had met its burden of showing that if the admission of defendant's prior conviction was error, it was harmless beyond a reasonable doubt; and that the supervised release condition survived plain error review.