Take the Fifth: March 19, 2021 opinions

Designated for publication

  • U.S. v. Kieffer, 19-30225, appeal from E.D. La.
    • Haynes, J. (Haynes, Higginson, Oldham), Oldham, J., concurring; criminal, sufficiency of evidence, juror questioning, crime of violence
    • Affirming convictions of father-and-son co-defendants on charges arising from armed robberies of armored trucks, including convictions for conspiracy to commit bank robbery, armed bank robbery, brandishing a firearm in furtherance of a crime of violence, attempted armed bank robbery resulting in death, causing death through use of a firearm, making a material false statement to a grand jury, and possession of a firearm by a felon. During trial, a third co-defendant who had entered a guilty plea testified against them. Also during trial, the district court allowed jurors to submit questions, which the court would re-frame and then present to the fact witnesses; during the first two days of trial, the district court did not allow the attorneys to review or object to the questions ahead of time, but during the final three days did allow review and objection. In total, the district court submitted 21 juror questions to the fact witnesses, then denied a motion for new trial by the defendants on the basis of that questioning. The co-defendants were each sentenced to life in prison.
    • The Court held that there was sufficient evidence to support the convictions even if, arguendo, the convictions both depended on the testimony of the co-conspirator, which the defendants characterized as unreliable. “[A] conviction ‘may be sustained if supported only by the uncorroborated testimony of a coconspirator … unless the testimony is incredible or insubstantial on its face.’ Whatever the problems with Scott’s credibility, his account was neither physically impossible nor outside his powers of observation; the jury decides credibility of witnesses, not the appellate court.” (Internal citations omitted).
    • The Court also held that there was sufficient evidence to support the conviction of one of the defendants for being a felon in possession of a firearm, despite the defendant’s Rehaif argument that he did not know he was a qualifying felon at the time of possession. The Court applied de novo review and found that the defendant had stipulated to being a felon at trial.
    • The Court also held there was no abuse of discretion in the district court’s administration of juror questioning. The Court held that the district court’s method was not erroneous where it reviewed the juror questions to ensure they were not “legally improper,” even where he did not provide counsel an opportunity to review; the Court also held that the “large volume of questions does not by itself justify a new trial.” After making those holdings, however, the Court went on to recommend a procedure for district court’s to follow in such situations. “Nonetheless, district courts should consider following an established procedure such as that set forth by the D.C. Circuit in United States v. Rawlings:
      • ‘First, the court should inform counsel in advance that juror questions will be allowed, should require that all juror questions be submitted in writing, should review them with counsel out of the presence of the jury (evaluating objections, if any) and then, if it finds the question proper, should itself ask the question of the witness. In addition, before any questioning begins, the court should instruct the jurors about the function of the questioning procedure in clarifying factual (not legal) issues and should direct them to remain neutral and, if the judge fails to ask a particular question, not to take offense or to speculate as to the reasons therefor or what answer might have been given. Then, after a particular witness has responded to the questions, the court should permit counsel to re-question the witness. We also think it prudent to repeat the instructions in the closing charge.’ 522 F.3d 403, 408 (D.C. Cir. 2008) (citations omitted).”
    • The Court then held that any procedure would be acceptable as long as the district court reviews the questions first for legal impropriety. The Court reiterated there was no error here, noting that neither defendant here pointed to any particular question as prejudicial, and that there was “no indication that any juror abandoned his or her role as a neutral fact-finder.”
    • The Court then rejected one co-defendant’s argument that there was ambiguity as to the underlying “crime of violence” for his conviction of use of a firearm by a felon who had committed a crime of violence, where it was clear that the underlying conviction was for armed robbery.
    • Judge Oldham concurred in judgment. He took issue with the majority’s use of de novo review on the Rehaif argument raised by one of the defendants. “De novo review applies to preserved errors—because we want defendants to preserve errors, and we want district courts to address them before we do. That’s why, on materially identical facts, we previously reviewed an unpreserved Rehaif claim like Armstead’s only for plain error. See United States v. Huntsberry, 956 F.3d 270, 282 (5th Cir. 2020). The majority’s embrace of de novo review contravenes Huntsberry. And it highlights a disturbing countertrend in our precedent, which encourages defendants to say as little as possible in the district court and to save their good arguments as ‘gotchas!’ for appeal.”
    • Judge Oldham also disagreed with the majority’s discussion of the Rawlings factors regarding juror questioning. “I also do not understand the majority’s discussion of United States v. Rawlings, 522 F.3d 403 (D.C. Cir. 2008). See ante, at 7–8. My hang-up is not the wisdom or folly of the Rawlings procedure. What’s unclear to me is where we get the power to embrace it. That long list of shoulds and ifs and thens looks more like something that would come from an advisory (or model rules) committee. And more importantly, it seems problematic to adopt the Rawlings rule here because the district court repeatedly violated it. If the violations matter, then we’d have to reverse. If the violations don’t matter (which is what I understand the majority to hold), then our entire discussion of Rawlings is advisory.”


  • Lopez v. Garland, 18-60251, petition for review of BIA order
    • Graves, J. (Southwick, Graves, Engelhardt), immigration
    • Granting in part and denying in part Honduran citizen’s petition for review of thee denial of their asylum applications, vacating the IJ’s order of removal, and remanding for further proceedings. The Court held that “the IJ and the BIA improperly determined that Morales Lopez did not make a sufficient showing of past persecution and a well-founded fear of future persecution” regarding gang-related threats of violence to them.
  • U.S. v. Huckel, 20-10965, appeal from N.D. Tex.
    • per curiam (King, Smith, Wilson), criminal, compassionate release
    • Affirming denial of motion for compassionate release on COVID-19 grounds.
  • U.S. v. Lerma-Martinez, 20-40715, appeal from S.D. Tex.
    • per curiam (King, Southwick, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Griffin, 20-60768, appeal from S.D. Miss.
    • per curiam (Higginbotham, Jones, Costa), criminal, sentencing
    • Granting summary affirmance of sentence imposed after pleading guilty, pursuant to a written plea agreement, to possession with the intent to distribute methamphetamine.