This is the first of a continuing series of summaries written by Jackson Walker partner, Joe Magliolo, and his colleagues, of new, published Fifth Circuit criminal opinions, with occasional forays into other subjects of interest to White Collar/False Claims Act practitioners.
The goal is to provide information relevant to attorneys who practice in these areas about any relevant developments in Criminal/False Claims Act-related cases.
These summaries will be published approximately twice a month. All opinions cited are linked in the case title, and the bolded judge is the author of the Court’s opinion.
United States v. Norman, No. 24-30294, — F.4th —, 2025 WL 670450 (5th Cir. Mar. 3, 2025)
Issues: Fourth Amendment, Search Warrants, Good-Faith Exception.
Chief Judge Elrod, Judge Jones, Judge Stewart (from M.D. Louisiana).
Here, the government appealed from the district court’s order granting the defendant, Quwinton Norman’s, motion to suppress evidence on the basis that the search warrant supporting the search of a home where Norman spent the night after an alleged drug transaction was bare bones and failed to establish probable cause. The defendant argued further that the search warrant failed to establish a nexus between the house and drug activities. That search produced a significant quantity of drugs and cash, which led the government to charge Newton with possession with intent to distribute cocaine and methamphetamine.
The Court reversed that order, holding the good-faith exception applied because the supporting affidavit contained enough facts that it was not “bare bones,” and it remanded the case to the district court.
The search warrant affidavit at issue was based upon a Livingston Parish, Louisiana detective’s belief that Norman was supplying methamphetamine to a local drug dealer. The two-and-a-half-page affidavit, signed by a state court judge, set forth that: (1) there were text messages between Norman and an alleged drug dealer indicating that the dealer was purchasing large quantities of narcotics from Norman several times a week and Norman directed that dealer to meet him at Norman’s residence to purchase those narcotics; (2) after a drug transaction, Norman drove to the house at issue and stayed there for the evening; (3) the next day, Norman drove from that house to his apartment twice within an hour and continued traveling between those locations; and (4) officers saw one of Norman’s known associates arrive at the house in a car believed to be used by Norman and referenced in Norman’s text messages. (The opinion does not state the source of the text messages, but the government’s brief suggests the detective obtained them by searching the cell phone of the drug dealer with whom Norman was communicating, as described above.)
The Fifth Circuit held that the affidavit setting forth the above facts was not “bare bones” because it established a nexus between Norman and the home where the drugs were discovered, as Norman “presumably had the proceeds from the drug transaction with him at the house that night.” As a result, the judge who approved the warrant could have drawn a reasonable inference that there was evidence in the home that was searched.
Since the Court issued this opinion, the defendant has signaled his intent to file a motion for panel rehearing but has not yet done so.
United States v. Flores, No. 23-50128, — F.4th —, 2025 WL 682273 (5th Cir. Mar. 4, 2025)
Issues: Federal Probation, Assimilative Crimes Act, Supervised Release.
Judge Stewart, Judge Richman, Judge Scholer [N.D. Texas District Court Judge, Sitting by Designation] (from W.D. Texas).
This case involved the rarely invoked Assimilative Crimes Act (“ACA”), 18 U.S.C. § 13, which “incorporates the local criminal laws of the state in which the federal enclave [here a National Park] is located.” Flores was previously convicted of violating the ACA by endangering his minor daughter on a dangerous trip through Big Bend National Park, located on federal property, when they ran out of food (for four days), but after which they continued for several days, declining offers of assistance along the way.
A jury convicted Flores of violating the ACA, the Texas state law predicate offense being placing his daughter in “imminent danger of death, bodily injury, or physical or mental impairment [,]” in violation of Texas Penal Code § 22.041. The district court sentenced Flores to five years’ probation.
Flores almost immediately violated his terms of probation by testing positive for the use of cocaine. The district court revoked his supervised release, sentenced Flores to 24 months’ imprisonment, and added a year of supervised release to follow his release from incarceration.
On appeal, Flores only challenged the imposition of the additional term of supervised release, arguing that the underlying Texas law that underpinned his ACA conviction could not lead to more than 24 months’ imprisonment, rendering the term of supervised release in excess of the maximum allowable sentence.
The Court, explicitly leaving the question open as to what would occur if Flores violated the subsequent term of supervised release and received a further term of incarceration, affirmed the district court’s sentence.
The panel’s primary basis was that federal courts, in typical criminal cases based upon federal statutes, are able to impose terms of supervised release in addition to sentences that hit the statutory maximum.
In apparent dicta, the Court added that the term of supervised release did not violate the defendant’s right to a jury trial under any language in United States v. Haymond, 588 U.S. 634 (2019), as that decision involved mandatory-minimum sentences, which were not implicated in Flores’s case.
United States v. Cisneros, No. 23-40625, — F.4th —, 2025 WL 719964 (5th Cir. Mar. 6, 2025)
Issues: Second Amendment, United States v. Bruen, Sentencing.
Judge Graves, Judge Higginson, Judge Wilson (Per Curiam) (from S.D. Texas).
The Fifth Circuit here considered a defendant’s conviction for being a convicted felon in possession of ammunition under United States v. Bruen and a sentencing enhancement for possessing the same ammunition in furtherance of another felony. The Court affirmed the conviction but reversed the enhancement under plain-error review.
State police and federal agents searched Cisneros’s residence as part of an ongoing drug-trafficking investigation, during which a confidential informant purchased cocaine from Cisneros. In Cisneros’s residence, they located four rounds of high-caliber rifle ammunition and drug paraphernalia, though they found no firearms or narcotics.
The district court denied Cisneros’s Bruen-based challenge, and Cisneros pled guilty to the single charge. At sentencing, the district court added a four-level enhancement to Cisneros’s offense level under USSG § 2K2.1(b)(6)(B) for possessing ammunition in connection with drug-trafficking activity and sentenced Cisneros to 96 months’ imprisonment. His trial counsel failed to object to this enhancement in any form.
On appeal, Cisneros challenged the charge based on the ammunition under United States v. Bruen and, for the first time, the sentencing enhancement.
The Court quickly dispensed with Cisneros’s Bruen-based facial and as-applied challenges and affirmed his conviction. It noted that his facial challenge was unavailing based on existing precedent. Further, since Cisneros raised the as-applied challenge for the first time in his Reply Brief, the Court explained that it was unpreserved. But, even under plain-error review, it would fail because that assertion would require the extension of existing precedent, fatal to his unpreserved argument.
As to the sentencing enhancement, the Court cited United States v. Eaden, 914 F.3d 1004 (5th Cir. 2019), in which it previously reversed the same sentencing enhancement in circumstances much like Cisneros’s, as there was insufficient evidence to show the ammunition, he possessed facilitated drug-trafficking because it was not in plain sight in view of drug purchasers or other traffickers.
In Cisneros’s situation, the ammunition he possessed in his bedroom was likewise not in plain sight to drug traffickers or purchasers, and there were no drugs found in that residence. Since the district court based its sentence in part on this enhancement, the Court held the error affected Cisneros’s substantial rights and reversed for resentencing.
United States v. Roland, No. 22-20588, — F.4th —, 2025 WL 730714 (5th Cir, Mar. 7, 2025)
Issues: Mortgage Fraud, Wire Fraud, Money Laundering, Good-Faith Defense, Special Assessment, Intrinsic Evidence, Rule 404(b).
Judge Jones, Judge Oldman, Judge Hendrix [N.D. Texas District Court Judge, Sitting by Designation] (from S.D. Texas).
The Fifth Circuit here principally considered a number of evidentiary challenges at issue in a nine-day trial of Clarence C. Roland, III, who represented himself pro se when facing conspiracy, wire fraud, and money-laundering charges related to his fraudulent real estate scheme. Aside from correcting a clerical error related to the special assessment included in his criminal judgment, the Court affirmed Roland’s conviction.
Roland’s scheme unfolded like this. He would approach mortgage holders with the promise of helping them obtain their house without a mortgage or by slowing down the foreclosure process through a “legitimate process.” In reality, Roland transferred ownership of the residences to a shell company he controlled, created fake mortgage and lien documents (along with fraudulent notary stamps), filed these documents and eliminated the legitimate mortgage, and then sold the property to an unsuspecting third-party buyer. Title companies, in receipt of the fraudulent documents, would release the buyer’s funds to Roland to pay off his fraudulent “interest” in the property.
The jury convicted Roland on all counts, and the district court sentenced him to 10-years’ incarceration.
Represented by counsel on appeal, Roland challenged a bevy of evidentiary rulings the district court made before and during trial, his lack of funding for an expert witness, that his conduct was criminal, and the imposition of a $1,000 special assessment.
The Court first considered Roland’s four evidentiary challenges. Roland argued that the district court improperly admitted evidence of his co-conspirator’s previous conviction during the trial. The panel disagreed, finding that the district court gave a proper limiting instruction to the jury concerning the fact of conviction; the government did not overemphasize it (save for mentioning it in closing argument, which the Court found was harmless error), and Roland was able to make use of this fact on cross-examination by impeaching the co-conspirator. Any error related to mentioning the conviction during closing argument was further mitigated by the “mountain of evidence” demonstrating Roland’s guilt otherwise adduced at trial.
Next, the Court found evidence of Roland’s prior conviction for a similar real estate scheme was admissible because (1) it was intrinsic to the charged scheme, and not subject to Rule 404(b); (2) the government used the conviction to impeach Roland; and (3) this fact was not over-emphasized during trial.
Third, the Court held that the district court appropriately limited Roland’s attempted use of the good-faith defense. The Court gave no credence to Roland’s claim that he should have been able to claim reliance on a Supreme Court case that was released only months before his years-long scheme concluded. It further would not question the district court’s unwillingness to let Roland pose hypothetical questions to the testifying co-conspirator, as he was not qualified as an expert witness. The Court noted that Roland should have been able to question his ex-wife as to his honesty, but it found any error harmless given the quantity of evidence against him.
As for the expert witness Roland claimed he needed, the Court explained that Roland had failed to seek one with a proper motion and, even if he had, he did not show with specificity why he needed that expert or that this hypothetical expert would have assisted his defense.
The Court quickly dispensed with Roland’s claim that the conduct was not criminal because another part of the U.S. Code authorized it, as that statute had nothing to do with Roland’s case.
Finally, the Court found that the district court should not have included the $1,000 special assessment in Roland’s judgment because it orally pronounced Roland lacked the ability to pay that amount and apparently included it in the judgment erroneously. The Court reformed that portion of the judgment but affirmed in all other respects.
United States v. Martinez, No. 23-20596, consolidated with United States v. Lightner, No. 23-20600, — F.4th —, 2025 WL 811099 (5th Cir. Mar. 14, 2025)
Issues: Pill Mills, Spoliation, Sufficiency of the Evidence, Plain Error, Jury Instruction Error, Cumulative Error, Sentencing Enhancements, Pinkerton Liability.
Judge Clement, Judge Graves, Judge Willett (from S.D. Texas).
This appeal followed a joint trial of Doctor Oscar Lightner and Andres Martinez, who respectively were the primary doctor and office manager of a significant, years-long pill-mill operation running out of Lightner’s Houston-based wellness center. Lightner and Martinez were tried together, and both were convicted of drug offenses based on the over-prescription of opiates and muscle relaxants over a 15-month period.
On appeal, Martinez challenged the sufficiency of evidence marshaled on his two counts of conviction, while Lightner argued his jury instructions were incorrect, the government should have been sanctioned for spoliation of evidence, a government witness’s testimony should have been stricken, that these errors cumulatively infected the trial’s outcome, and there were three sentencing errors.
The evidence showed a traditional pill-mill operation. The clinic, with Lightner being the only prescribing doctor there during the conspiracy period, only accepted cash, refused insurance or government-funded payments, and Lightner prescribed either opiates, muscle relaxants, or Xanax to 97% of his 1,766 patients during the charged conspiracy period. The clinic’s patients, many of whom “appeared homeless,” were largely brought in by “runners,” who brought these patients three to four times a day. These runners helped patients fill out paperwork, sometimes paid their appointment fees, and would pay Martinez to reserve spots for the patients. They then took the patients to the clinics, filled the prescriptions, and sold the drugs illegally. The runner-supplied patients often comprised most of Lightner’s daily patient load.
Because they raised largely separate issues on appeal, I will break them out by defendant below:
Martinez’s Issues
Martinez was convicted of being involved in a drug conspiracy with Lightner and based on Pinkerton liability, being liable for Lightner’s conspiracy with an undercover informant who posed as a patient and runner and brought patients for visits to Lightner’s clinic.
Martinez first challenged the existence of evidence showing a criminal agreement with Lightner, pointing to Lightner’s testimony that no official agreement existed with Martinez to that effect. The Court explained the jury was free to disregard that testimony and credit evidence showing Martinez’s involvement in the pill-mill operation.
Further, Martinez claimed he played only a minor role in the conspiracy and never wrote prescriptions. The evidence showed, however, that Martinez knew about Lightner’s prescribing practices, helped facilitate bringing runners to the clinic, and collected lump-sum payments from them for a group of patients.
The evidence of Martinez’s involvement in the conspiracy related to the informant was based upon Pinkerton liability, as Martinez could reasonably foresee that Lightner would write prescriptions to that informant during the course of the conspiracy and, moreover, Martinez interacted with the informant about how to obtain certain prescriptions.
Lightner’s Issues
Though he failed to object to the jury instructions at trial, Lightner first claimed the district court erred because it instructed the jury that it could convict him of the conspiracy charge if either Lightner or Martinez knew of the illegal purpose of the agreement. The Court agreed that this was error, but it did not reverse on this ground because he could not show that “but for” this error, he would have been acquitted, as the significant evidence of Lightner’s drug-prescribing practices demonstrated Lightner’s knowledge of the illegal purpose of the agreement.
Lightner also claimed the Court should have sanctioned the government for its purported spoliation of certain clinical files. But, at the district court, Lightner’s counsel admitted there was no evidence showing the government intentionally destroyed files, and there was no evidence in the record showing they destroyed the files in bad faith. This led the Court to reject the argument that any spoliation instruction should have gone to the jury.
Next, Lightner argued a government witness’s testimony should have been stricken because evidence discovered after she completed testifying demonstrated she lied about her drug use. That witness testified that she became addicted to opiates and muscle relaxants because of Lightner’s prescribing practices to her, and that she stopped using the drugs after she moved to Colorado. After her testimony concluded, the government discovered and produced documents demonstrating that the witness’s drug use continued after her move, undermining her previous testimony. At trial, the government stipulated that the jury could learn about this false testimony, but the district court refused to strike her testimony. On appeal, the Fifth Circuit held that this was not error, because the stipulation provided a method of impeaching the witness’s testimony.
The Court then rejected Lightner’s cumulative-error argument, as the only error he identified was the faulty jury instruction. And, because a single error cannot comprise cumulative error, and there was sufficient evidence demonstrating Lightner’s guilt on the charges of conviction, he could not make the requisite showing.
Lightner finally challenged three elements of his sentence—the calculation of the drug weight attributed to him, the two-level drug-premises enhancement, and the four-level leadership enhancement.
The Court found the district court appropriately calculated the drug weight attributed to Lightner because it was based upon the quantity of drugs of abuse he prescribed during the conspiracy period, Lightner’s established practice of prescribing those drugs almost exclusively, and doing so despite the signs of drug abuse among his patients.
It similarly affirmed the premises enhancement because the evidence showed Lightner was the sole prescriber of the drugs at issue during the conspiracy period, and he did so from his wellness clinic. The Court rejected Lightner’s argument that he merely prescribed and did not “dispense” the drugs from the clinic, as previous case law indicates that prescribing these drugs illegally qualifies for this enhancement.
Finally, the Court affirmed Lightner’s management enhancement because his activities were extensive and the conspiracy involved multiple people, including Martinez, office staff, and the runners. Moreover, because the district court provided Lightner a 276-month downward variance from the low end of his guidelines, due to his advanced age and health conditions, the Court found any purported error would be harmless.
