The following published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on July 30, 2008:

• U.S. v. Baker (Jolly, Clement, Owen, JJ.; opinion by Owen, J.) (appeal from S.D. Tex.). Vacating in part and affirming in part conviction on child pornography charges, and remanding for resentencing. The Fifth Circuit held that arguments not raised in a motion to suppress are not waived on appeal but are subject to plain error analysis. The Court then held that the misrepresentation of facts in the affidavit used to support the obtaining of a search warrant of the defendant’s home and home computer (the agent testified that he erroneously attested that images of child pornography were traced to the defendant’s IP address, rather than to his email address) was not plain error and that the district court’s denial of the motion to suppress was therefore not plain error. The Fifth Circuit then held that the government had failed to provide a foundation for the entrance into evidence of forty-six photos that the defendant allegedly uploaded to a Yahoo file-sharing site because it had failed to authenticate them, and vacated the defendant’s conviction of one count of distributing those forty-six images. The Fifth Circuit nevertheless held that sufficient evidence remained to uphold the defendant’s conviction on three other counts of receiving and possessing child pornography.
• Singh v. Duane Morris LLP (Reavley, Smith, Dennis, JJ.; opinion by Smith, J.) (appeal from S.D. Tex.). Vacating judgment in favor of plaintiff in legal malpractice lawsuit and rendering judgment of dismissal for lack of subject matter jurisdiction. The malpractice action was removed to federal court on the defendant’s allegation that resolution of the case would turn on application of federal trademark law because the underlying litigation as to which malpractice was alleged involved claims of trademark infringement. The Fifth Circuit held that a state law malpractice claim does not arise under federal law merely because the underlying representation occurred in the context of a federal trademark lawsuit.