Take the Fifth: March 3, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Johnson, 19-30921, appeal from W.D. La.
    • Dennis, J. (Dennis, Higginson, Willett), criminal, sufficiency of evidence, due process, sentencing
    • Affirming convictions of co-defendants for the armed robbery of two banks and one credit union and with related firearms offenses and sentences of 498 months for one defendant and 339 months for the other defendant.
    • The Court did not decide whether the brandishing element required the government to prove that the victim was aware of the use of a firearm to try to intimidate them or if it would suffice for the government to focus just on the defendant’s actions in displaying the firearm regardless of the victim’s awareness. Instead, the Court held that, while that was a novel issue in the Court, there was sufficient evidence in the record (in security video footage) to support a jury finding that the bank teller was momentarily aware of the defendant’s display of the gun in spite of potentially contradictory testimony by the teller.
    • The Court also decided that there was sufficient evidence to show the brandishing element of an armed robbery for the one co-defendant who did not have a gun during the credit union robbery because the co-defendants were each also charged with aiding and abetting each other for that robbery, and the Court had already determined the there was sufficient evidence on the other co-defendant’s brandishing of a firearm in commission of the credit union robbery.
    • The Court then held that one of the defendant’s prior felony financial card theft convictions in North Carolina qualified as predicate felonies that supported his conviction for being a felon in possession of a firearm.
    • The Court held that one co-defendant’s due process rights were not violated when the jury requested to review various audio tapes the jurors indicated in their note consisted of that co-defendant’s voice, and when the trial court permitted them to hear those tapes without any caveat that the court was not endorsing their implication that the tapes indeed contained the co-defendant’s voice. “The possibility that the district court’s statement was understood by the jury as tacit confirmation that it was Goings’s voice on the recording is remote. Throughout the proceedings, the district court made at least 15 statements to the jury concerning the jury’s role as sole factfinder, including that the jury should disregard any comments on the facts made by the court. Viewed in context, there is not a reasonable likelihood that the district court’s response influenced the jury.”
    • The Court then held there was no prohibited double-counting in the trial court’s use of the fact that one of the defendants fired a handgun at a pursuing officer as the basis for a sentencing enhancement for reckless fleeing and for assault on a law enforcement officer.
  • U.S. v. Trevino, 20-40249, appeal from S.D. Tex.
    • Duncan, J. (Wiener, Dennis, Duncan), criminal
    • Affirming conviction and sentence of defendant for being a felon in possession of a firearm.
    • “To convict a defendant of a felon-in-possession charge under 18 U.S.C. § 922(g), the Government must prove that the defendant both (1) knew he possessed a firearm and (2) knew he had the relevant (i.e., felon) status when he possessed it.” The Court rejected the defendant’s argument that the government must also prove that he knew that, as a felon, he was prohibited from carrying firearms. “[A] mistake concerning a defendant’s knowledge that the law prohibits convicted felons from possessing firearms does not negate any element of the offense.”
  • PNC Bank, National Association v. Ruiz, 20-50255, appeal from W.D. Tex.
    • Engelhardt, J. (Elrod, Willett, Engelhardt), foreclosure, jurisdiction
    • Vacating magistrate judge’s entry of summary judgment in favor of bank on challenge to validity of foreclosure, on basis that magistrate lacked jurisdiction to enter final judgment.
    • The bank had expressly declined to consent to proceeding before the magistrate, but a docketing error by the clerk showed that the bank had consented (as had the defendant). Subsequently, the district court judge transferred the matter to the magistrate on an order that no party had objected to proceeding before the magistrate, and no party objected. There continued to be no objection throughout the proceedings, up through the magistrate’s denial of the defendant’s summary judgment motion and grant of the bank’s summary judgment motion.
    • “We conclude that the magistrate judge lacked jurisdiction and, it follows, so do we. Accordingly, our analysis must end where it begins, without reaching the merits of Ruiz’s appeal. … Implied consent can be deduced from a party’s conduct during litigation and is sometimes enough to satisfy the consent requirement. But can consent implied by conduct alone trump a prior express and unambiguous statement of non-consent? In other words, can jurisdiction-by-estoppel overcome a written, properly-filed statement of non-consent? That is the question at issue here, and, until now, we have not had occasion to address it.”
    • The Court held, “We agree that, absent its express refusal to consent, PNC’s course of conduct during all proceedings before the magistrate judge likely would imply its consent. PNC signaled consent by conspicuously declining to object at any of the numerous opportunities it had for doing so and affirmatively litigating before the magistrate judge. But its prior inconsistent statement, which it never expressly recanted, renders that subsequent conduct inconclusive and precludes us from inferring clear and unambiguous consent.”

Unpublished

  • Thompson v. Hedrick, 19-30595, appeal from W.D. La.
    • per curiam (Jones, Barksdale, Stewart), § 1983, qualified immunity
    • Affirming dismissal on qualified immunity grounds of plaintiff’s § 1983 claim arising from a heart attack he suffered while in custody.
  • Dinkins v. Lara, 19-40809, appeal from E.D. Tex.
    • per curiam (Davis, Stewart, Dennis), Bivens claim
    • Affirming dismissal of plaintiff’s Bivens claim arising from medical treatment received while in custody.
  • Patel v. Wilkinson, 19-60475, petition for review of BIA order
    • per curiam (Jones, Barksdale, Stewart), immigration
    • Dismissing in part and denying in part Indian citizen’s petition to review BIA denial of his third motion to reopen and rescind his 2011 in absentia order of removal.
  • Wells v. Department of Family Services, 20-30269, appeal from M.D. La.
    • per curiam (Davis, Stewart, Dennis), sovereign immunity
    • Affirming dismissal of claims against Department of Family Services and state of Louisiana on Eleventh Amendment grounds.
  • Atakapa Indian de Creole Nation v. Edwards, 20-30461, appeal from M.D. La.
    • per curiam (Wiener, Southwick, Duncan), frivolous
    • Affirming dismissal of claims by self-styled “Trust Protector” of the Atakapa Indian de Creole Nation as frivolous.
  • U.S. v. Rodgers, 20-40137, appeal from E.D. Tex.
    • per curiam (Stewart, Graves, Higginson), criminal, sentencing
    • Dismissing as wholly without merit defendant’s appeal regarding supervised release conditions.
  • Charles v. K-Patents, Inc., 20-40297, appeal from E.D. Tex.
    • per curiam (Barksdale, Southwick, Graves), products liability
    • Affirming district court’s excusing of defendant’s non-compliance with local rule, and district court’s striking of testimony by plaintiff’s expert engineer.
  • U.S. v. Rodriguez, 20-40496, appeal from S.D. Tex.
    • per curiam (Wiener, Dennis, Duncan), criminal, sentencing
    • Affirming below-guidelines sentence of 200 months in prison as well as five years of supervised release on conviction for one count of possession of 29.26 kilograms of methamphetamine with intent to distribute.
  • U.S. v. Davis, 20-50409, appeal from W.D. Tex.
    • per curiam (Stewart, Graves, Higginson), criminal, sentencing
    • Dismissing as frivolous appeal of district court’s denial of motion for reduction of 180-month sentence for aiding and abetting in the possession with intent to distribute 50 grams or more of crack cocaine.
  • U.S. v. Dukes, 20-50484, appeal from W.D. Tex.
    • per curiam (Higginbotham, Costa, Oldham), criminal, mootness, search and seizure
    • Dismissing as moot appeal of revocation of supervised release, and affirming conviction on firearm offense on upholding district court’s denial of motion to suppress.
  • U.S. v. Wilson, 20-50732, appeal from W.D. Tex.
    • per curiam (Higginbotham, Jones, Costa), criminal, Covid-19
    • Affirming district court’s denial of motion for early release under the CARES Act.
  • U.S. v. Domingo-Morales, 20-50762, appeal from W.D. Tex.
    • per curiam (Wiener, Southwick, Duncan), criminal, sentencing
    • Granting summary affirmance of within-guidelines sentence of 21 months’ imprisonment and three years’ supervised release for illegal reentry.
  • Bykov v. Wilkinson, 20-60002, petition for review of BIA order
    • per curiam (Davis, Stewart, Dennis), immigration
    • Denying Russian citizen’s petition for review of BIA dismissal of his appeal from the IJ’s denial of his applications for asylum and withholding of removal.
  • Singh v. Wilkinson, 20-60438, petition for review of BIA order
    • per curiam (Jones, Barksdale, Stewart), immigration
    • Dismissing in part and denying in part Indian citizen’s petition for review of BIA dismissal of his appeal from an order of an IJ denying: his application for asylum; withholding of removal; and relief under the Convention Against Torture.
  • Garcia-Tinoco v. Wilkinson, 20-60534, petition for review of BIA order
    • per curiam (Jolly, Elrod, Graves), immigration
    • Denying in part and dismissing in part Mexican citizen’s petition for review of BIA denial of her second motion to reopen her immigration proceedings, based on a determination that it was untimely and number-barred.