The following additional published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on April 24, 2008:

• Crocker v. National Union Fire Ins. Co. of Pittsburgh (Garwood, Higginbotham, Clement, JJ.; per curiam). In a separate Texas state court lawsuit, plaintiff received a $1,000,000.00 default judgment against an additional insured on a CGL policy issued by the defendant insurer. The plaintiff then brought suit against the insurer, as a third party beneficiary on the liability policy, for the amount of the default judgment, on the basis that the insurer breached its duty to defend and indemnify its insured. The parties filed cross-motions for summary judgment; the insurer argued that it did not owe coverage because its insured failed to provide notice of the claim made against him by the plaintiff. The district court found in favor of the plaintiff. On appeal, the plaintiff argued that the insurer had actual knowledge of the claim and was not prejudiced in its ability to respond timely. The Fifth Circuit certified the issue to the Texas Supreme Court (466 F.3d 347). After opinion by the Texas Supreme Court (246 S.W.3d 603), the Fifth Circuit held that the insurer did not have a duty to sua sponte act on the policy without notice being provided by its insured, even when it otherwise had notice of a suit and even when the insured was unaware of the potential coverage. The Fifth Circuit reversed the district court and remanded with instructions to the district court to enter a take-nothing judgment against the plaintiff.
• U.S. v. Ogba (Higginbotham, Davis, Smith, JJ.; opinion by Higginbotham, J.). Affirming in part, and reversing in part, convictions and sentences of defendants for health care fraud, conspiracy to commit health care fraud, paying and receiving illegal kickbacks, engaging in monetary transactions with illegally obtained funds, alteration or falsification of records, and endeavoring to influence a grand jury. The defendants’ conviction arose from their activities operating a durable medical equipment (”DME”) supply business supplying wheelchairs to medicare patients of doctors who the defendants allegedly paid for referrals; the defendants also allegedly committed fraud in, inter alia, supplying lesser wheelchairs to patients than what they reported for medicare coverage, taking back wheelchairs after receiving medicare funds, providing wheelchairs to ambulatory patients, and not providing wheelchairs at all after charging medicare for them. The Fifth Circuit held that the district court did not abuse its discretion in declining to allow into evidence an email between the government and one of the prosecution’s cooperating witnesses or a transcript of a colloquy regarding that witness as exculpatory Brady material, as the email constituted hearsay and the information from the colloquy was elicited through other means by the defendants’ counsel; that the district court did not abuse its discretion in allowing the government to use a chart showing the acts of alleged conspiracy between the defendants and the prosecution witness, as the district court instructed the jury that the chart was not evidence; that the admission of hearsay testimony by an investigator regarding statements made by recipients of wheelchairs, while a violation of the Confrontation Clause, was harmless error because of other, non-hearsay, evidence that tended to prove the issue supported by the admitted hearsay; that the district court did not abuse its discretion in providing a “deliberate ignorance” instruction to the jury on the element of “knowing” commission of the offense; that Congress had the power to enact the Health Care Fraud and Illegal Remuneration statutes under the Commerce Clause; and that the sentencing of defendant Antoon for 54 months for healthcare fraud and concurrently for 54 months for illegal remuneration was multiplicitous and plain error, and justified remand for resentencing (though the remaining defendants abandoned the multiplicity argument on appeal and were therefore not entitled to resentencing).