Take the Fifth: Feb. 23, 2021 opinions

Designated for publication

  • U.S. v. Dejean, 19-30865, appeal from E.D. La.
    • Duncan, J. (Clement, Ho, Duncan), criminal, juror bias
    • Affirming jury-trial conviction of defendant for mail fraud and making false statements to a bank; rejecting defendant’s argument that district court erred in seating a juror who allegedly was biased against gamblers, where defendant used the proceeds from his crimes to fund his casino gambling.
    • Counsel for the defendant had successfully stricken for cause two potential jurors who unequivocally stated during voir dire that they thought gambling was “evil” or that their disdain for gambling would make it so that the defendant wouldn’t have “an even playing field.” He also challenged for cause Juror 31, who said she did not think gambling was morally or ethically wrong, but that it seemed to her personally that it was a “silly” way to use money and answered “possibly” when asked if that feeling could lead her to not adjudge a defendant involved in gambling fairly; the district court denied that challenge. Defendant properly preserved that challenge for appeal.
    • The Court found no abuse of the district court’s discretion in denying the strike of Juror 31, rejecting the defendant’s argument that the district court should have questioned the juror further rather than relying on her demeanor during counsel’s questioning during voir dire. “The lack of rehabilitation questioning here does not amount to an abuse of discretion; nonetheless, it would have been prudent for the court to inquire further. After all, Juror 31 agreed—without qualification—that she ‘shouldn’t sit on this case’ after a brief line of questioning by the defense counsel …. At the very least this response raises questions about the juror’s impartiality—questions that would be troubling had the district court not later found the response was motivated by the juror’s desire to end counsel’s questioning. We agree, as the government contends, that potential jurors are not presumed to know the legal standard for impartiality, but a follow-up question may have been warranted given Juror 31’s unqualified response and the relatively short voir dire.”
  • Harness v. Hosemann, 19-60632, appeal from S.D. Miss.
    • Smith, J. (Smith, Higginson, Engelhardt), Fourteenth Amendment, voting rights
    • Affirming summary judgment dismissing claims of violation of their Fourteenth Amendment voting rights by plaintiffs who had been convicted of crimes delineated by § 241 of the Mississippi constitution as among crimes for which disenfranchisement would result.
    • The Court summarized the discriminatory intent and history of § 241: “From the Civil War until 1890, Mississippi denied the franchise to those convicted of any crime punishable by imprisonment in the state penitentiary. But in 1890, Mississippi replaced its generic description of disenfranchising crimes with a list of specific disenfranchising crimes: ‘bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy.” Miss. Const. art. XII, § 241 (1890). Its reason for doing so was discriminatory. The state made no secret of its motive: ‘Restrained by the federal constitution from discriminating against the negro race, the [1890 Mississippi constitutional] convention discriminated against its characteristics and the offenses to which its weaker members were prone.’ Ratliff v. Beale, 20 So. 865, 868 (Miss. 1896). The convention believed that blacks were ‘given rather to furtive offenses than to the robust crimes of the whites,’ so ‘[b]urglary, theft, arson, and obtaining money under false pretenses were declared to be disqualifications, while robbery and murder and other crimes in which violence was the principal ingredient were not.'” Section 241 was amended in 1950 to remove burglary from the list and in 1968 to add murder and rape.
    • The district court granted summary judgment to dismiss the plaintiffs’ claims challenging the constitutionality of § 241’s disenfranchisement provisions as being motivated by discriminatory intent, holding that the Fifth Circuit had already ruled in Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998), that “the discriminatory taint of the 1890 provision was removed by the amendment processes in 1950 and 1968.”
    • The Court first rejected the Mississippi Secretary of State’s argument that the plaintiff’s lacked standing because the execution of their disenfranchisement under § 241 was by county election officials and not the Secretary of State. “[U]nder Mississippi law, the office of the Secretary of State ‘ha[s] a role in’ removing convicted felons from the voter rolls ‘and is in a position to redress it at least in part.'”
    • The Court also rejected the Secretary of State’s sovereign immunity arguments, holding that there was a sufficient connection between the challenged disenfranchisement under the statute and the Secretary of State’s role in enforcing the allegedly unconstitutional statute.
    • The Court then held that, while states cannot disenfranchise felons under a law with a discriminatory intent, under the rule of orderliness requiring panels of the Court to be bound by prior panel opinions on the same issue, Cotton foreclosed any further challenge to whether the 1950 and 1968 amendments cured the unconstitutional taint of § 241.


  • U.S. v. Peyton, 18-40554, appeal from E.D. Tex.
    • Higginson, J. (Clement, Higginson, Engelhardt), criminal, sentencing
    • Affirming in part and remanding in part conviction on guilty plea to one count of conspiracy to possess with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine, and sentence of 292 months’ imprisonment and 10 years’ supervised release; remanding for limited purpose of conforming conditions of supervised release with oral pronouncement.
  • U.S. v. Carter, 19-11222, appeal from N.D. Tex.
    • per curiam (Davis, Stewart, Dennis), criminal
    • Affirming judgment revoking the five-year supervised release term imposed on defendant’s conviction for possessing with intent to distribute cocaine base and imposing a new prison term.
  • Dugas v. Quintero, 19-40433, appeal from S.D. Tex.
    • per curiam (Clement, Higginson, Engelhardt), prisoner suit
    • Dismissing appeal of judgment dismissing less than all of plaintiff’s claims against all of defendants, for lack of appellate jurisdiction.
  • U.S. v. Garcia-Cruz, 19-40624, appeal from S.D. Tex.
    • per curiam (Smith, Stewart, Higginson), criminal
    • Granting Anders motion to withdraw and dismissing appeal.
  • U.S. v. Garza, 19-51184, appeal from W.D. Tex.
    • per curiam (Jolly, Southwick, Costa), criminal, sentencing
    • Affirming sentence of 480 months of imprisonment on three counts of conviction for conspiracy to interfere with commerce by extortion; conspiracy to distribute and possess with intent to distribute a controlled substance; and being a felon in possession of firearms in and affecting commerce.
  • Hawk v. McCain, 20-30476, appeal from E.D. La.
    • per curiam (Willett, Ho, Duncan), habeas corpus
    • Denying certificate of appealability from dismissal of § 2254 petition.
  • U.S. v. Barraza-Soto, 20-50627, appeal from W.D. Tex.
    • per curiam (Davis, Stewart, Dennis), criminal, sentencing
    • Granting summary affirmance of 24-month within-guidelines sentence imposed following defendant’s guilty plea conviction for illegal reentry.
  • U.S. v. Bernal-Bernal, 20-50716, appeal from W.D. Tex.
    • per curiam (Davis, Stewart, Dennis), criminal, sentencing
    • Granting summary affirmance of 14-month within-guidelines sentence imposed following defendant’s guilty plea conviction for illegal reentry.

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