The following published opinions were released by the U.S. Court of Appeals for the Fifth Circuit on October 17, 2008:

• U.S. v. Guerrero (Davis, Clement, Elrod, JJ.; opinion by Clement, J.) (appeal from S.D. Tex.). Affirming conviction and sentence on RICO violations involving allegations of conspiracy to possess with intent to distribute controlled substances. The defendant was charged with being the head of a twenty-year drug distribution ring responsible for distributing more than 1,900 kilograms of cocaine and more than 73,000 kilograms of marijuana over that time. The court ruled that the defendant’s original counsel was disqualified due to conflict with cooperating witnesses, despite counsel’s representation that other counsel would be used to cross-examine those witnesses; and the district court also denied defendant’s motion to suppress evidence seized from his home on the basis that there was no probable cause for the search. Subsequently, defendant pled guilty to the RICO violation in a plea agreement where the other charges against him were dismissed and the defendant expressly waived his right to appeal sentencing issues; although the government requested a sentence of 240 months under the plea agreement, the court sentenced the defendant to 360 months’ imprisonment. The defendant also failed to preserve other rights of appeal. The Fifth Circuit held that the defendant waived his right to appeal the suppression of evidence ruling by unconditionally pleading guilty. The Court then held that the guilty plea could not act as a waiver of the defendant’s appeal of the denial of his counsel of choice, as such a violation would be a structural error that could have undermined the guilty plea itself; but that the district court did not abuse its discretion in finding that the defendant’s original counsel should be disqualified for conflict of interest. The Court then held that the defendant’s appeal as to the length of his sentence was waived in the guilty plea.
• Bally’s Park Place Inc. v. NLRB (Smith, Stewart, Southwick, JJ.; per curiam opinion) (on petition for review of order by National Labor Relations Board). Dismissing appeal by Bally’s of summary judgment by NLRB in favor of United Auto Workers. An appeal from an NLRB order must be made to the federal circuit in which the party against whom the order is made resides, is incorporated, or operates facilities, transacts business, or in which the alleged unfair labor practice occurred. Bally’s argued that it “transacts business” in the Fifth Circuit, conceding that none of the other factors is applicable to this appeal. The Fifth Circuit held that Bally’s may not rely on the Circuit contacts of its parent corporation, Harrah’s; and that allowing the patronage of its New Jersey casinos by residents of the Fifth Circuit would render the “transacts business” limitation no limitation at all. The Court held that “transacts business” requires some sort of physical presence; “[t]ransacting business in the Circuit sufficient for an appeal will require more than individuals’ within the Circuit connecting with Bally’s through the commonplace and universal reach of modern technology.” Slip op. at 5.