The following published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on August 14, 2008:

• U.S. v. Reasor (Higginbotham, Stewart, Southwick, JJ.; opinion by Stewart, J.) (appeal from W.D. Tex.). Affirming sentence of defendant on multiple counts of forgery, mail fraud, and credit fraud. Defendant had been sentenced to concurrent terms of 42 months’ imprisonment; after the Fifth Circuit vacated 28 forgery counts, on remand the defendant was sentenced to concurrent sentences of 37 months’ imprisonment. The Fifth Circuit held that the amount of loss determined by the district court for sentencing purposes was not clearly erroneous; and that the two-level enhancement for misrepresenting that the defendant was acting on behalf of a religious organization was applicable.
• Oliver v. Quarterman (Smith, Garza, Prado, JJ.; opinion by Prado, J.) (appeal from E.D. Tex.). Affirming district court’s denial of habeas relief. On application for state postconviction relief, the state court found that the jury at the defendant’s capital trial had improperly relied on Bible passages in deliberating the defendant’s death sentence, but that the Bible did not influence the jury’s decision. The Fifth Circuit held that the error was harmless, as the petitioner failed in his petition for federal habeas relief to present clear and convincing evidence to rebut the state court’s finding that the Bible here did not influence the jury’s decision.
• Crowell v. Shell Oil Co. (King, Higginbotham, Southwick, JJ.; opinion by Higginbotham, J.) (appeal from S.D. Tex.). Affirming summary judgments by district court finding that ERISA applied to plaintiffs’ state law claims regarding underpayment of pension benefits and dismissing plaintiffs’ claims. The Fifth Circuit held that Letters of Agreement detailing one-time pay-outs on employees’ pension plans upon the acquisition of Pennzoil by the Shell defendants constituted an ERISA “plan”; and that the district court did not err in applying an abuse of discretion standard to the determinations reached in the Letters of Agreement.
• Gene and Gene LLC v. Biopay, LLC (Jones, C.J., Garwood, Jolly, JJ.; opinion by Jolly, J.) (appeal from M.D. La.). Reversing district court’s decision to certify a class in a suit brought to enforce provisions of the Telephone Consumer Protection Act relating to unsolicited fax advertisements, and remanding for further proceedings. The Fifth Circuit held that the district court did have subject matter jurisdiction over the matter under the Class Action Fairness Act; but that the district court abused its discretion in certifying the class because the class could not meet commonality requirements because the determination of whether each class member was a consented-to or unconsented-to recipient was a factually intensive and individualized determination.
• U.S. v. Carriles (King, Higginbotham, Southwick, JJ.; opinion by King, J.) (appeal from W.D. Tex.). Reversing dismissal of indictments charging false statements during naturalization proceedings and suppression of statements, and remanding for further proceedings. The defendant - involved in many sensitive political events including attempts to unseat Fidel Castro, involvement with the Venezuelan secret police, and efforts to arm Contra rebels during the Iran-Contra affair - was charged with making false statements on his naturalization application. The district court ordered suppressed tapes and transcripts of the defendant’s naturalization interview and dismissed his indictment due to government misconduct. The Fifth Circuit held that the failure of the naturalization interviewer to inform the defendant that his statements might be used in a criminal prosecution was not misconduct sufficient to undermine the indictment: “the mere failure of a government official to warn that an investigation may result in criminal charges does not constitute fraud, deceit, or trickery.” Slip op. at 17. The Fifth Circuit then held that the district court erred in suppressing the defendant’s statements on the basis that incomplete or inaccurate translation during the naturalization interview resulted in a due process violation, because the question was not one of due process but was an ultimate question as to guilt of the false statements charge that was for a jury to decide.