CROOK v. GALAVIZ
United States Court of Appeals, Fifth Circuit
627 F. App‘x 381
We therefore hold that the district court did not еrr when it dismissed Crook’s promissory estoppel claims.8
C.
Lastly, we consider Crook’s argument that the district court should have granted injunctive relief “as a matter of рublic policy.” The injunction Crook desires would require: 1) sealing all criminal records from the general public, except for the most egregious offenses; and 2) barring employers from inquiring as to a job applicant’s criminal record. Apparently this injunction would benefit not just Crook but everyone with a criminal record. As аn injunction is a remedy that must be supported by an underlying cause of action, the failure of Crook’s constitutional and common law claims also warrants dismissal оf this claim. See Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097 (11th Cir. 2004) (“[A]ny motion or suit for a traditional injunction must be predicated upon a cause of action. . . . There is no such thing as a suit for a traditional injunction in the аbstract.”).
IV.
The judgment of the district court is AFFIRMED.
UNITED STATES of America, Plaintiff-Appellee v. Mark Allan JAMES, Defendant-Appellant.
No. 14-20727.
United States Court of Appeals, Fifth Circuit.
Sept. 29, 2015.
Dane Christian Ball, Esq., Hector Raul Chavez, III, Smyser Kaplan & Veselka, L.L.P., Houston, TX, David Andrew Schlesinger, Esq., Jacobs & Schlesinger, L.L.P., San Diego, CA, for Defendant-Appellant.
Mark Allan James, Encinitas, CA, pro se.
Before JONES, SMITH, and SOUTHWICK, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
Appellant Mark James was convicted of both a wire fraud conspiracy to defraud Hewlett Packard and a money laundering conspiracy, in violation of
On appeal, James raises only two issues: whether the indictment was constructively amended during the government’s closing argument; and whеther the district court abused its discretion by refusing to hold a post-verdict hearing concerning a hearing-impaired juror. Finding no reversible error of fact or law, we affirm.
1. James objected contemporaneously to one comment in the government’s closing argument. The indictment stated that James conspired “with othеrs, known and unknown to the grand jury” in committing wire fraud. James’s theory of defense was that HP knew he and his confederates were reselling computer equipment they obtained through the Big Deal program on the open market contrary to HP’s rules for the discount program. James argued that because HP “condoned” his activitiеs, he had no intent to defraud. In closing, the government responded that even if a salesman or a person working in an HP warehouse knew what James was up to, this did nоt mean that HP condoned James’s fraudulent purchases and reselling. Instead, it made those employees co-conspirators. James contends that this response constructively amended the indictment by turning the indicted “outside conspiracy,” organized without HP’s knowledge or acquiescence, into an “inside conspiracy” against the company.
Like the district court, we find no merit in this contention. The indictment is broad enough to cover unnamed conspirators. Moreover, the government was entitled to inform the jury of a basic feature of corporate law: knowledge of low level employees cannot necessarily be imputed to the victim corporation itself. An indictment is impermissibly amended only where a court “allows proof of an essential element of thе crime on an alternative basis permitted by the statute but not charged in the indictment.” United States v. Slovacek, 867 F.2d 842, 847 (5th Cir. 1989). That the indictment named coconspirators who were outside HP did not, under its specific “known and unknown” terms foreclose the government from proving the involvement, had it chosen to do so, of an employee inside HP. We emphasizе,
2. The ability of a juror to hear the trial proceedings is “an internal matter,” Tanner v. United States, 483 U.S. 107, 118, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987). This court has held that “in order to initiate any post-verdict inquiry into an internal matter regarding a juror, an extremely strоng showing of juror incompetence must be adduced, and substantial evidence of incompetence must originate from a non-juror source.” United States v. Webster, 960 F.2d 1301, 1306 (5th Cir. 1992) (citation оmitted). James denies the applicability of this stringent standard on the basis that the juror’s hearing deficit was considered before trial and re-raised post-verdict. But thе only case to which he refers is distinguishable because it concerned allegations about juror conduct that were raised and delved into before the verdict was rendered. United States v. Sotelo, 97 F.3d 782, 797 (5th Cir. 1996). An extraordinary showing is reasonably required, however, when the losing party waits to impugn a juror until after rendition of the verdict. Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir. 1990).
No extraordinаry showing was made of this juror’s hearing difficulty. The district court carefully accommodated the juror’s self-described deficits by placing her nearest the witness box and instruсting her to raise her hand if she could not hear at any point. James’s only specific objections are that (a) the court had to repeat two questions to the juror during voir dire, and (b) the juror hesitated before being the first one polled on the verdict of conviction. Notably, defense counsel informed the court before it dismissed alternate jurors at the close of trial that he was comfortable with “the usual procedure.” In other words, defense counsel withdrew his previously expressed concern about this juror’s hearing difficulty. The trial court witnessed these events and later wrote that the juror never indicated she was having any trоuble hearing the proceedings. As to the polling, the court concluded that the juror was more likely hesitant because of the nature of an unfamiliar requеst rather than because she was hard of hearing. We find no error or abuse of discretion in the court’s refusal to hold a post-verdict hearing or declarе a new trial because of the juror’s hearing impairment.
The judgment of conviction is AFFIRMED.
UNITED STATES of America, Plaintiff-Appellee v. Ronzell MITCHELL, Defendant-Appellant.
No. 14-40286
United States Court of Appeals, Fifth Circuit.
Sept. 29, 2015.
Summary Calendar.
Kimberly S. Keller, Keller Stolarczyk P.L.L.C., Boerne, TX, for Defendant-Appellant.
Ronzell Mitchell, Fort Dix, NJ, pro se.