United States v. Gary Corn

RUBIN, Before WILLIAMS, and DAVIS, Judges. Circuit ALVIN RUBIN, B. Judge: Circuit Corn pleaded guilty to contempt criminal violating an injunction prohibited that illegal trading in securities. The district court sentenced him to years serve five prison $6,045,527 pay and to restitution to the victims of the securities fraud. We find no merit in challenges Corn’s injunction underlying convic- tion, but, because the district did Corn, as required by advise Federal Rule of 11(c)(1), Criminal Procedure be ordered to pay restitution in conse- quence of his plea, we remand to the district court with instructions either to allow withdrawal his toor resen- tence Com ordering restitution. If after trial or re-pleading, again Com sentenced to Vic- tim and Act,1 Witness Protection the court compensation only for those losses resulting from offenses committed after the effective date of the statute. I. Exchange Securities and

Commission Gary sued charging Com him 18 U.S.C. §§ 3579-3580 evidence, a restitution Securities Acts entered with violations amended,2 order, in connection requiring Corn to reimburse each in the Hollens- up sale of securities investor full to the more than six Company. parties consented worth Oil million dollar total. district this suit

to resolution challenges now conviction injunction permanent issuance of a court’s argues sentence. He dealing illegally in prohibiting Corn from prohibit- entered the Hollensworth case securities, undivided “namely, fractional illegal trading only in ed Hollensworth se- of- gas in leases working interests oil any and not in curities other securities. Hollensworth, do- by fered James Edward injunc- he that the the alternative asserts Company, Oil ing as Hollensworth business vague tion was so or overbroad as to be spe- The court any or other securities.”3 by contempt. He contends unenforceable offer or sell not to cifically ordered Corn Judge Sterling, that who convicted further subject to that were unregistered securities and sentenced Corn in connection with the requirements Section registration the fraud, authority Energy Beard lacked the 19334 and not to Act of of the Securities Seals, only Judge to so who do because devices, make false state- deceptive use Hollensworth, injunction entered the in in ments, material facts or fail to state legitimately could enforce this order. Corn sale, offer, purchase or connection with guilty maintains that his was not vol- of securities. untary intelligent 1, 1982, and Decem- September Between to inform him of the minimum and failed 31, 1983, again became Corn ber possible maximum sentences and to warn transactions, illegal securities involved with might pay resti- him that he to ordered an president of sales for this time as vice Finally, objects to the order of tution. Energy the Beard organization known as applies losses restitution insofar as it prosecuted, and Group. government the effec- incurred before contempt to criminal pleaded guilty Corn Protec- date of the Victim and Witness tive violating injunction issued for authorizes restitution as tion Act which During plea collo- case. Hollensworth sentencing.5 part quy rearraignment, Corn, guilty in you “if are found informed impose just about

this case the Court can II. every- proper, it ... sentence thinks challenges injunction to the Corn’s accepted thing except death.” The court contempt conviction underlying the however, without men- guilty plea, Corn’s injunction repeatedly merit. The without or- tioning possibility of a restitution trading prohibitions on states sentencing hearing, the court der. At the working inter “fractional reach undivided prison federal for ordered Com confined to gas by leases offered ... in oil and ests years and that a restitution five announced ” or other securities Hollensworth ... prosecution and order would follow if the added). (emphasis claims that Corn ev- probation presented sufficient office specified interests language refers by the victims idence of the losses suffered any other securities and to Hollensworth Energy fraud. of the Beard If court had issued Hollensworth. later, sub- government Three months Hollens limit its meant to commands showing that 160 inves- mitted a statement securities, said so. it have worth would $6,045,527. filed no tors had lost Instead, compre order and, explicitly it its evidence, made objection to this receiving any further hensive. holding hearing a (1982); 77e. 17 C.F.R. 240.- U.S.C. §§ 77a-78kk 10b-5 §§ 5. 18 U.S.C. Hollensworth, Comm’n v. 3. Securities and Exch. (S.D.Tex.1977). Civil Action No. H-77-1048 that, injunction if the long power

Corn asserts have had the to enjoin and to trading securities, prohibits illegal in all punish it contempt as acts forbidden stat- nothing vague more ute,10 amounts to than including might acts that have been obey law. Federal Rule of punished mail or securities fraud.11 In- 65(d) provides: “Every Civil Procedure or deed, single course of conduct lead injunction every granting der an re punishment for several distinct offenses straining set forth the order shall reasons statutes,12 separate Congress issuance; specific shall be its its clearly has defined as an offense terms; shall in reasonable describe [and] distinct from mail or securities fraud.13 sought detail ... the act acts to be Moreover, injunc- the Hollensworth rule purpose restrained.” The is to tion was entered consent put parties they on fair notice of what parties objections vitiates Corn’s to the or- Thus, injunction are forbidden to do.6 der, plead as does his decision to ordering “obey party the law” contempt charge the criminal rather than well fail as overbroad. But the specified to a number of counts of mail and in compelled issued more Hollensworth Having securities fraud. plea made his law; than mere to the it set forth obedience bargain, may complain Corn not now specific types in terms the of securities contempt ground conviction the on that it proscribed. transactions That the court in penalties carries different from for those a corporated injunction language into the fraud conviction. from the securities laws does not make the injunction vague long so as the borrowed argument The Judge Sterling that language “adequately the im describe^] may Judge not enforce injunction Seals’s permissible find the conduct.”7 We Hol also fails. Corn cites Waffenschmidt injunction both specific lensworth and Mackay proposition for that “[enforce clear, adopts and so it nonetheless because injunction through ment of contempt an a terms from the securities laws.8 proceeding issuing juris must in occur contempt diction because is an affront

Corn that the injunction asserts and issuing the court the order.”14 This fall, state contempt must conviction none enough. problem ment is true lies in theless, may prohibit court attempt equate Corn’s acts, fraud, judge with as or such mail securities al the court. The ready Hollensworth punishing forbidden statute. In case, him issued from contempt argues, for in this United District Corn Court for the Southern Texas improperly court circumvented the sen District of tencing designed by Congress personal structure was not the command of Seals, punish Judge Judge Sterling, mail or fraud and or any exer other judge cised instead its unfettered on “Each judge own discretion that court. of a in imposing penalty for disobedience to a power multi-district court has the same equity, court order.9 authority judge.”15 Courts each other 592, 564, Baum, Debs, 6. Matter 606 F.2d 593 Cir. 10. In re 158 U.S. 15 S.Ct. Products, 1979); (1895); Miller, Sheila's Shine Inc. v. Sheila 39 L.Ed. 1092 588 at F.2d 1261. Shine, Inc., (5th Cir.1973). Williams, 11. 402 F.2d 47. Miller, 7. United States v. 1261 Cir.1978), denied, 440 U.S. 99 rt. ce States, 333, 344, 12. v. United 450 U.S. Albernaz 59 L.Ed.2d 636 67 L.Ed.2d 275 8. See Securities Exch. Comm’n Manor supra 13. See note 9. Centers, Inc., (2d Nursing 1103 States, 402 Williams v. F.2d 47 (5th Cir.1985). 14. 763 F.2d 1967). Cir. also the See Hollensworth in junction appended opinion. this Martinez, 15. United States v. (5th Cir.1982) Stone, Compare (quoting §§ U.S.C. 77q (5th Cir.1969)). C. § with 18 accepting plea, guilty III. that court may him to restitution to the that the district court Corn contends commenting victims the crime. on guilty plea accepting without erred rule, the 1985 to the adding amendment admonishing him as Federal requirement, Advisory Committee 11(c)(1). Rule of Criminal Procedure Rule states, “[bjecause this restitution deemed 11(c)(1)provides: sentence, aspect of the defendant’s ... plea guilty or nolo accepting a Before it is a about which matter a defendant contendere, court must address the tendering guilty nolo conten- open personally in court and defendant dere should be advised.” district court of, and inform the defendant determine in this made mention case no of restitution understands ... that the defendant sentencing hearing, until more than charge plea is to which the nature plea. accepting two months after offered, penalty minimum mandatory pleaded guilty law, if provided by any, and the maxi- therefore, charge, any prior without notice law, penalty possible provided mum to pay be ordered restitution. and, any special parole term the effect circumstances, Under these applicable, that when accepting his plea. court erred resti- order the make also defendant victim tution The Fourth Circuit as well as a district offense. added.) (Emphasis that circuit have vacated restitu- resentencing tion orders remanded statement, that the court’s Corn asserts restitution because the defendant rearraignment, “impose just it could prior possibil- pleaded without notice of the proper, any sentence it thinks ... about restitution;17 ity Eighth of and Ninth death,” sweep- except was too everything have done Circuits so ing consequences inform him of the real agree- scope plea was outside the upon plea. attendant his 18 ment; Third, Seventh, and the and Ninth Corn was convicted16 statute which guilty pleas Circuits have affirmed and res- mandatory penalty no contains minimum only finding upon titution orders that the penalty the maximum within the leaves possi- had notice defendants received discretion of court. ac- sound entering bility finally of restitution before knowledged understanding he was his pleas.19 all of these decisions but their pleading to court a crime for which the Hawthorne, decision the Fourth Circuit sentence, alone would determine the not reviewing guilty pleas the courts were en- during only rearraignment, in the but also August effective tered stated, plea signed, agreement which before 11(c)(1) amendment to Rule date part, “I relevant am aware that the maxi- requiring as to If admonition restitution. provided by mum sentence statute for the notice, then, rule the unamended charged offenses in the Informa- Criminal requires the amended rule notice. fortiori, way tion not limited imprisonment impose court a term of government counters that Com fine and/or a duration or amount it right complain has about the waived may choose.” possibility of notice of the of resti absence 11(c)(1),however, object court tution because he when the requires Rule failed defendant, might first explicitly to inform the before district court indicated that it (1980); L.Ed.2d see 401 100 62 644 Garcia, v. 35-37 also United States F.2d Hawthorne, 17. United States v. (1st Cir.1983). Lott, Cir.1986); 497-501 United States v. (E.D.Va.1986), F.Supp. aff’d, 612-13 Grewal, 19. United States (4th Cir.1986). 795 F.2d 82 Mischler, (9th Cir.1987); Cir.1986); Whitney, 18. United States v. 785 F.2d 824 United States v. Runck, Woods, (3d United States 85-87 (8th Cir.1979), order restitution. The Seventh es, Circuit re- dowe not find a waiver of protec- cently addressed this issue in two sen- tion express afforded commandment tences: “House [the contends defendant] of Rule 11. that the district court should have informed Corn’s challenge, moreover, in him of possibility of restitution before volves a purely legal question which, if accepting plea. He did present not overlooked, would result in miscarriage court, claim to the district it justice.21 In United States v. Velas is too late impossible now.”20 It is for us quez, this applied circuit this standard whether, decide case, in an identical we review, for the first time on appeal, a de would abrupt follow this statement for the fendant’s claim that the district proceedings leading court had procedural to House’s not complied at sentencing default proce unclear on the face of the Sev- dures mandated by opinion. enth Federal Circuit The record Rule Crimi in this nal case, however, 32(c)(3)(D).22 Procedure Following warrants a different result. Ve lasquez, we hold that whether the district The district court never mentioned resti- complied court express with the provisions tution sentencing until the hearing, two 11(c)(1) of Rule constitutes purely legal months already after Com had entered his question that must be answered neg in the knowledge without full of the direct ative on the undisputed facts in this record. consequences. sentencing At To overlook the error would result in a announced, “I going am to order that miscarriage justice by subjecting Corn restitution be made to the extent that it to a sentence about which he was ade may be determined presentation after a quately warned at the time of plea. evidence as to what restitution should be made.” Corn reasonably have antici- Citing Fentress,23 pated that the district court would hold a government next contends that the dis hearing “presentation of evidence” trict court’s failure to warn Com about the on restitution and decided reserve his possibility of restitution was harmless un objections until court, that time. The how- 11(h) der Rule and therefore not ground for ever, held no subsequent hearing. Three Fentress, reversal.24 In the Fourth Circuit allocution, months after government affirmed a district court’s order of restitu submitted a showing statement the losses tion the $38,000 amount of even though of each Four investor. months after that the district court had failed to warn the the court ordered restitution solely based might defendant that he be ordered pay to government’s on the Although evidence. restitution as a probation.25 condition of Corn had an opportunity object to the to The court of appeals deemed the error imposition restitution, of and even to file a harmless because Fentress knew at the motion to withdraw guilty plea under time he made his plea might that he be Federal Rule of 32(d), Criminal Procedure subject to fines of up $40,000, to an amount at any time between sentencing the hear- greater than the restitution he was ordered ing and the court’s order final of restitu- to pay. Thus his sentence greater was no tion more than later, seven months the than he had been expect.26 led to presents record no point obvious at which the defendant should objected have but analogous An argument possible here: failed to do so. Under these circumstanc- the court told Com that it could sentence House, 20. (7th States v. 11(h) 24. provides: Fed.R.Crim.P. "Any variance Cir.1986). procedures from the required by rule which does not rights affect substantial shall be dis- 21. Velasquez, United regarded.” (5th sho-Iwai Co. v. Nis Occidental Sales, Inc., Crude Cir. 25. See 18 U.S.C. 1984). § 3651. Tobias, 22. Cf. Fentress, 792 F.2d at 466. 1981). Cir. BUnit 23. 792 money every investor who lost reimburse fit; agreement the it saw

him however Corn was energy scheme. fine in in the Beard impose a could court the stated Group Energy from general Beard these hold active Yet we any amount. on to De- put Corn September to have approximately insufficient statements pay to ordered and Witness The Victim cember notice Indeed, $6,000,000 restitution. Act, authorizing restitution as more than Protection in so order restitution of a on imposition sentencing, effective became part of prior no- amount, explicit without large an January 1983.31 restitution, could of possibility of tice question on the are divided The circuits or not harmless either deemed scarcely be to a defendant a court order whether substantial the defendant’s affect to Wit- the Victim and under pay restitution moreover, sen- Fentress, was rights.27 incurred Act to victims who Protection ness of the 1985 date effective before tenced offenses committed losses as result 11(c)(1) which to Rule amendment date. The Sixth effective before admonition explicit time first unitary con- hold that a Eleventh Circuits about restitution.28 defraud, continuing spiracy or scheme validity of considering the Courts resti- triggers the January beyond notice prior without pleas entered guilty may order a court provisions so that tution usually have of restitution possibility all the victims compensation for per order the restitution simply vacated and Third Circuits The Fourth scheme.32 possibility resentencing without mitted restitution may order a court hold that cases, how these Most of of restitution.29 occurring only for losses the Act under imposed as orders ever, restitution involved 1983.33 after 18 U.S.C. probation a condition Mar- Oldaker and follow the rule of We integral part of as than 3651 rather time at on the tin, although we focus under 18 sentence §§ committed were the criminal acts which court in this case. Because losses at which the on the time rather than the restitution considered may have effective date Before the occurred. sentence, remand and we essential only as restitution Act, a could order court option either court give district “ex- The Act probation.34 him to ordering a condition resentence Corn authorizing an or- law current permit panded] withdrawal a condi- independent government allowing the of restitution plea, der its thereby permitting probation, fit.30 him if it sees tion re-prosecute fine, imprisonment, in conjunction use IV. im- sentence, sentence or other suspended Act Because the court.”35 posed by par fully briefed One issue applicable punishment thus increased again if the district arise ties will Corn’s, application crimes like he is and to withdraw allows Corn effec- before its committed to acts statute subject to a and again convicted clause under the problem a raises tive date Corn to court ordered district order. — Cir.1986), 1558, Runck, 1571 498; Hawthorne, F.2d U.S. -, 601 F.2d at See 806 27. (1987). 1578, 769 94 L.Ed.2d 970; Lott, S.Ct. F.Supp. 107 at 613. F.2d 630 Fentress, at 465. 28. Oldaker, 781- F.2d 823 v. States United 33. Martin, 788 Cir.1987); United 82 supra and 18. See notes 17 29. (3d 188-89 F.2d York, 92 v. New 30. Santobello 495, 499, 30 L.Ed.2d § 18 U.S.C. 34. (Histori- (1982) See 18 U.S.C.A. 31. Cong., 2d Sess. S.Rep. 97th No. Notes). cal 1982, pp. Cong. (1982), Admin.News & U.S.Code Purther, v. States 32. United 2515, 2538. Barnette, of the Constitution forbidding Congress to or denying the allegations on the pass post “ex It is plaintiff’s Law[s].”36 axio- Complaint, facto has stipulated and matic that courts interpret should statutes consented to the entry of permanent in- so as to avoid conflict with Constitu- junction as prayed for in plaintiff’s Com- hold, tion.37 therefore, We the Act plaint enjoining said defendant engag- from permits a sentence requiring restitution ing in acts practices which constitute or only of losses resulting from criminal acts will constitute violations of 5(a), Section committed January 1, after 1983. When 5(c) 17(a) and of the Securities Act the defendant’s offense is unitary con- as amended 77e(a), 77e(c) [15 U.S.C. spiracy or defraud, scheme to govern- 77q(a)] and 10(b) Section of the Securities ment must identify which losses resulted Exchange Act of as amended [15 from acts committed before and which 78j(b) U.S.C. ] Rule 10b-5 thereunder from acts committed after the effective CFR [17 240.10b-5] the Court being date purposes of restitution under fully advised premises: in the the Victim and Witness Protection Act. IT IS HEREBY ORDERED, AD- For the foregoing reasons, we REMAND JUDGED and DECREED that defendant, to the district court with instructions to CORN, GARY his agents, servants, em- resentence Corn without ordering restitu- ployees, attorneys, assigns, successors and tion or to allow him to withdraw plea. them, each of be and hereby per- If, after trial or repleading, Com again manently enjoined from, directly or indi- sentenced restitution under the Vic- rectly: tim and Witness Act, Protection (a) Making use of any means or instru- may order compensation only for those ments of transportation or communica- losses resulting from criminal acts commit- tion in interstate commerce or of the ted after January mails to offer to securities, sell namely, fractional undivided working interests in APPENDIX gas oil and leases offered JAMES EDWARD HOLLENSWORTH, IN THE doing UNITED STATES DISTRICT business COURT FOR HOLLENSWORTH OIL THE SOUTHERN DIS- COMPANY, or any securities, TRICT other OF TEXAS HOUSTON DIVI- through the use or any pro- SION medium of spectus or otherwise unless and until a Civil Action No. File H-77-1048 registration statement has been filed SECURITIES AND the Securities EXCHANGE and Exchange Com- COMMISSION, mission as securities, Plaintiff such or while a registration statement filed with the Se- curities and Exchange Commission as to JAMES EDWARD HOLLENSWORTH, such the subject of a refusal INDIVIDUALLY AND D/B/A HOL- order or stop order of the Securities and LENSWORTH OIL COMPANY GARY Exchange Commission (prior CORN effective registration date state- ment) any public proceedings or examina- (Filed August 2, 1977) tion under Section 8 of the Securities Act ORDER OF PERMANENT as amended 77h]; [15 INJUNCTION BY (b) Making use instrument of CONSENT transportation or communication in inter- IT APPEARING to the Court that the state commerce or of the mails to sell defendant CORN, GARY without admitting securities, namely, fractional undivided Const, I, 36. U.S. art. cl. 3. See Miller also 37. Ashwander v. Valley Authority, Tennessee — Florida, U.S. -, 2446, 2450-53, 346-48, U.S. 80 L.Ed. L.Ed.2d 351 (1936) (Brandeis, J., concurring).

(2) gas produced The amount of oil and issuer; by by wells drilled gas in leases working interests oil and (3) expected income which could be The EDWARD HOL- by JAMES offered being in from an investment doing as HOL- business LENSWORTH issuer; offered COMPANY, any or LENSWORTH OIL securities, through use or medi- other (4) offering; proceeds The use of of the otherwise, un- prospectus or any um of any pur- or other statements of similar is registration until statement less and port object; or Ex- and in effect the Securities with (5) degree of risk involved in invest- securities; change as to such Commission working in in- ments fractional undivided (c) causing Carrying such securities or leases; and, gas terests in oil and through the mails or them to be carried (6) period of time in which inves- by any means or in interstate commerce may expect tor to receive a return of his transportation for the instruments or original capital investment. sale, delivery purpose sale or after transaction, act, (c)Engaging in registration statement unless and until practice op- or course of which business and Ex- is in effect with the Securities operate or would as a fraud or erates securities; change as to such Commission upon any person. deceit however, nothing in the fore- provided IT IS FURTHER ORDERED that apply to going portion of this Order shall Stipulation of the attached and Consent required not to be any securities which are incorporated named defendant above registered under Section 5 the Securities herein reference. as amended Act 77e]. [15 copy IT that a IS FURTHER ORDERED ORDERED, AD- IT IS FURTHER permanent of this and the at- defendant, and DECREED that JUDGED Stipulation tached and Consent be served servants, CORN, agents, em- CARY named U.S. Marshal on the defendant assigns, ployees, attorneys, successors are, herein. them, hereby per- each of be and from, indi- enjoined directly or manently IT IS FURTHER ORDERED that offer, pur- rectly, in connection jurisdiction of this cause Court will retain securities, namely, frac- or sale of chase purpose of such other and further for the working in oil undivided interests tional may in the interest relief as ED- gas by JAMES leases offered equity and as the Court justice and doing business HOLLENSWORTH WARD necessary proper, and that the deem OIL as HOLLENSWORTH COMPANY party will remain above named defendant securities, by any other the use any further purpose to this cause of instrumentalities mails means proceedings herein. interstate commerce: August, 1977. day ENTERED this 2d (a) Employing any manipulative or de- SEALS /s/ WOODROW device, to de- ceptive scheme or artifice Judge States District fraud; concurring DAVIS, in Judge, Circuit (b) Making statements of materi- untrue dissenting part: in part, omitting material al facts or to state stated in order to necessary facts to be of the court and judgment I concur made, light make the statements I opinion. through III of I Parts they under which holding of the circumstances with the disagree, make, misleading, concerning not but the district court in Part IV that majority following: limited to the Victim and authority under the (Act) to of 1982 Protection Act (1)The experience background, and fi- Witness to make restitution require Corn nancial condition of HOLLENSWORTH a result they suffered as for losses victims OIL COMPANY and HOLLENS- activity before WORTH; of Corn’s resolving this is key may applied issue deter- be violating the ex offense, Thus, mining post prohibition. the date of Corn’s facto a statute provides apply increasing penalty respect Act that it shall to a “of- 1, occurring January conspiracy may applied conspir- on or after to a fenses acy prior Witness Protection which commenced 1983.” Victim and Act but was 1982, 9(b)(2), beyond carried on and continued of No. the ef- Pub.L. 1248, (1982) added.) fective date the new (emphasis act. Stat. Scott, W. Lafave A. Criminal Law 94 &. single Corn’s conviction for the offense (1972). unregis- resulted from sales of tered securities he made both before the I Because conclude that the Act autho- effective date of the 1983 rizes the district court to order Corn to Act— —and after that date. The conduct make restitution to his victims for losses throughout period violated the court’s caused Corn’s conduct both before Janu- In analyzing order. when the offense oc- ary thereafter, respectfully 1983 and I Act, purposes agree curred I contrary dissent from the conclusion of the majority continuing with the that Corn’s majority. analogous continuing

conduct is ato con-

spiracy or scheme to defraud.

Four other circuits have considered when purposes offense occurs for of the Act continuing conspiracy or fraud cases.1 I agree position with the taken the Sixth SAVIDGE, al., et Jonathan and Eleventh Circuits on this issue. Plaintiffs-Appellants, continuing conspiracy cases of or schemes they to defraud hold if the conduct began Act, before the effective date of the al., FINCANNON, Jaylon et date, and continued after that the offense Defendants-Appellees. subject provisions of the Act.2 No. 86-1841. Professors LaFave and Scott in their Appeals, Court States United hornbook on criminal law consider the Fifth Circuit.

problem determining the date of an of- fense post purposes for ex they facto 3, 1988. Feb. reach a conclusion consistent with that of Rehearing Rehearing En Banc the Sixth and Eleventh Circuits: 17, 1988. Denied March problem determining the date post purposes the offense for ex facto present also be when the offense nature,

of a continuing ongo- as with an

ing conspiracy or where the offense is

defined in terms allowing a certain

condition upon to continue or is based

omissions the defendant. If the con-

duct, condition, or failure to act contin-

ues after the enactment or amendment in question, statute this statute Oldaker, Purther, 1. United States v. 823 F.2d 781-82 2. United States v. 823 F.2d (4th Cir.1987); Martin, United States v. Barnette, (3d Cir.1986); United — (11th Cir.1986), denied, cert. U.S. Purther, (6th Cir.1987); -, 94 L.Ed.2d 769 Barnette, — Cir.1986), -, U.S. 107 94 L.Ed.2d 769

Case Details

Case Name: United States v. Gary Corn

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 21, 1988

Citation: 836 F.2d 889

Docket Number: 87-2722

Court Abbreviation: 5th Cir.