The following opinions were released by the U.S. Court of Appeals for the Fifth Circuit on July 28, 2008:

• Richardson v. Quarterman (Jones, C.J., Garwood, Jolly, JJ.; opinion by Garwood, J.) (appeal from N.D. Tex.). Affirming denial of habeas relief to petitioner on argument that trial judge should have recused himself because the trial judge’s wife was an acquaintance of the murder victim, the petitioner’s wife. The petitioner’s wife and the judge’s wife were both members of the Junior League of Dallas, and the judge’s wife testified that she classified their relationship as an acquaintance rather than a friendship. On direct appeal, the state appellate court found that, while there was an appearance of bias on the part of the trial court judge, there was no actual bias evident in the trial and any conflict was harmless error. The petitioner was subsequently denied state postconviction relief and the federal district court denied habeas relief. The Fifth Circuit held that the appearance of bias in the case was not “presumptive bias” sufficient to be a structural error requiring automatic relief; and that the state court’s finding of an appearance of bias did not otherwise justify the granting of habeas relief.
• Gates v. Texas Department of Protective and Regulatory Services (Wiener, DeMoss, Prado, JJ.; opinion by Prado, J.) (appeal from S.D. Tex.). Affirming district court’s dismissal of family’s claims against various state agencies for allegedly unconstitutional child abuse investigations. The Fifth Circuit held that the entry of TDPRS officials into the family’s home to interview the children without a warrant, and the subsequent refusal to leave the home after ordered out by the father, were constitutional injuries, but that, with regard to the special needs exception, were not “clearly established” for purposes of defeating the qualified immunity defense; that a state agency may not, under the Fourth Amendment, seize a child from a home absent a court order, parental consent, or exigent circumstances; that it was not unreasonable for the TDPRS employees to conclude that exigent circumstances existed for the removal of the family’s thirteen children from the home; that, for a social worker to be able to constitutionally remove a child from school for interview at a centralized location, she must be have a reasonable belief that the child is a victim of abuse and probably will suffer similar abuse upon return home from school that day; that the seizure of two of the family’s children from school in this case violated this standard, but that the violation of this standard was not a “clearly established” constitutional violation for purposes of defeating the qualified immunity defense; and that the family was accorded due process protections in the child abuse investigation procedures. The Fifth Circuit affirmed the district court’s judgment of dismissal in other respects, as well.
• U.S. v. Conner (Reavley, Jolly, Garza, JJ.; opinion by Reavley, J.) (appeal from W.D. Tex.). Affirming conviction for access-device fraud and mail fraud, but vacating sentence and remanding for resentencing. The Fifth Circuit held that there was sufficient evidence to support the conviction, and that the district court did not err in instructing the jury under the theory of “deliberate ignorance”; but that the district court did incorrectly count the number of “victims” for purposes of § 2B1.1(b)(2) of the Sentencing Guidelines.
• U.S. v. $92,203.00 (Prado, Elrod, Haynes, JJ.; opinion by Prado, J.) (appeal from W.D. Tex.). Reversing district court’s order of forfeiture of currency, and remanding for further proceedings. The Fifth Circuit held that the forfeiture order, granted on summary judgment, was improperly based on the government’s affidavit that contained inadmissible hearsay.
• U.S. v. Ramos (Jolly, Higginbotham, Prado, JJ.; opinion by Jolly, J.) (appeal from W.D. Tex.). Affirming convictions for use of a firearm in commission of a drug trafficking offense, and vacating convictions for tampering with an official proceeding, and vacating sentence and remanding for resentencing. The defendants, as Border Patrol agents, pursued a suspected drug smuggler toward the Mexican border; when the suspected smuggler abandoned his vehicle and fled on foot, the agents shot at him, wounding him non-fatally, but he got away. The agents then deliberately cleaned up the scene and failed to report the shooting. When the shooting was subsequently discovered, the agents were tried and convicted. On appeal, the Fifth Circuit held that the district court did not abuse its discretion nor violate the defendants’ Sixth Amendment rights in excluding evidence of a prior incident under FRE 403; that there was no plain error in the application of 18 U.S.C. § 924(c) against a law enforcement officer; that there was no plain error in the wording of the indictment charging the 924(c) offense; that there was no plain error in the heavy reliance by the prosecution on the defendants’ violation of Border Patrol policies; that there was no plain error in the district court’s jury instructions; and that the failure of the agents to report the shooting, in violation of internal Border Patrol policies, did not trigger the statute prohibiting tampering with an official proceeding.
• Mahler v. Kaylo (Jolly, Higginbotham, Elrod, JJ.; opinion by Elrod, J.) (appeal from E.D. La.). Reversing district court’s denial of habeas relief and remanding with instructions to grant relief. The Fifth Circuit held that the state of Louisiana committed a Brady violation when it failed to provide him with certain pretrial statements that were inconsistent with the witnesses’ trial testimony.