Fifth Circuit Handdowns – Jan. 21, 2014

United States v. Martinez – 09-50026 (unpublished): Summary affirmance of conviction under the Sex Offender Registration and Notification Act, based on resolution of the issues presented in new cases.

Washington v. Stephens – 09-70028 (unpublished): Grant of certificate of appealability and remand to the district court for consideration of a previously-unresolved ineffective assistance of counsel claim in a habeas proceeding. Pursuant to a “grant, vacate, and remand” from the Supreme Court in light of Trevino v. Thaler, which held that ineffective assistance of counsel in post-conviction proceedings excused procedural default of claims in habeas, applying a rule announced in Martinez v. Reyes.

United States v. Reyes – 10-50972 (unpublished): Affirmance of SORNA conviction based on failure to register after conviction for sex crimes under the Uniform Code of Military Justice.

United States v. Isgar et al – 11-20516 (published): Affirmance of convictions for mail and wire fraud and related offenses. Defendants used “straw purchasers” to obtain fraudulent financing for nine mortgages, offering inflated prices based on fraudulent documents. Money was then diverted into other accounts. Defendants challenged the sufficiency of the evidence, which the Court rejected. One defendant challenged subject-matter jurisdiction and venue, which were rejected as without merit and held waived, respectively. Two defendants challenged the admission of certain documents under the “records of regularly conducted activity” exception to hearsay, because the identifying witness was not an employee of the entity whose records they were. The Court denied the challenge because the testimony required to admit the documents does not require authentication, as long as the custodian testifying about the documents explains how they were acquired and protected from alteration while in the custodian’s possession. The Court reviewed a challenge to the prosecutor’s conduct for plain error (due to no contemporaneous objection) and found it without merit. One defendant asserted that her indictment was constructively amended, again reviewed for plain error. The court held that no such amendment occurred. No abuse of discretion in denying an untimely motion for a new trial where there was no showing of excusable neglect. Ineffective assistance of counsel claim denied without prejudice. One defendant challenged his sentence as unreasonable both in the length of imprisonment and the amount of restitution ordered, which the Court rejected.

United States v. Imo et al – 11-20791 (published): Affirmation of convictions for Medicare and Medicaid fraud, where an “alleged physical therapy clinic” billed over $30 million to CMS but never had any licensed physical therapists. Defendants paid patients to be treated; prepared fraudulent treatment forms; and billed for services never rendered. Defendants argued they were entitled to limiting jury instructions regarding inferences from violations of CMS regulations. The Court found no abuse of discretion in the denial, “[a]lthough it would have been preferable for the district court to provide a cautionary instruction,” because the jury was warned not to judge the Defendants for anything except conduct alleged in the indictments. One defendant challenged the sufficiency of the evidence, which the Court rejected. One defendant challenged the admission of certain evidence in her cross-examination relating to her fraudulent acts, which was denied because her fraudulent acts were relevant to her truthfulness. Two defendants challenged a sentencing enhancement based on intended CMS losses. The Court denied the challenge, ruling that the Government had met the lower preponderance of the evidence standard for the sentencing enhancement. (Ed.: This appears inconsistent with the requirement in Apprendi v. United States and its progeny that every fact that supports a sentencing enhancement must be found beyond a reasonable doubt and by the jury if the case is tried to a jury. Comments welcome as to why your editor is wrong.)

United States v. St. Junius et al. – 11-20805 (published): Grant of petition for rehearing and substitution for prior opinion. Affirmation of convictions for health care fraud and vacation and remand of sentencing. Defendants created a health-care entity but did not list a felon owner in their CMS application. They provided kickbacks to marketing staff for purchases, and routinely billed CMS for care not provided. One defendant challenged the admission of a rebuttal witness’s testimony, which was denied as to relevance because it was harmless error and as to hearsay because it was offered to attack credibility. The same testimony was reviewed for plain error as inadmissible character evidence, and the challenge rejected. One defendant challenged a “deliberate ignorance” jury instruction, which was rejected. Two defendants challenged sentencing enhancements for the sufficiency of the evidence to support them, which was rejected. One defendant challenged the sufficiency of the evidence for their conviction and other related ancillary matters, all of which were rejected. One defendant challenged the admission of her personnel file, which was rejected. One defendant challenged the loss calculation, which was rejected. Two defendants challenged their restitution orders, and the Government conceded that the orders exceeded the actual losses derived from the defendants’ conduct, and therefore the Court ordered vacation and remand for resentencing as to restitution.

United States v. Huerta – 11-20781 (unpublished): Affirmation of conviction for felon-in-possession and other firearms crimes. Defendant challenged sufficiency, which was summarily rejected. He also alleged constructive amendment, which fails because pattern jury instructions were offered; entitlement to an entrapment instruction, which fails because he did not allege inducement; and ineffective assistance of counsel, denied without prejudice.

Wellogix, Inc. v. Accenture, LLP – 11-20816 (published): Plaintiff’s jury verdict in trade-secrets litigation affirmed. Punitive damages award supported by evidence of malice and consistent with due process because reprehensibility did not strongly favor either party and damages ratio was 0.7:1. No authority supports a punitive-damages reduction where punitive damages are less than compensatory damages.

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