Take the Fifth

Designated for publication

• Mayfield v. Butler Snow, L.L.P., 21-60733, appeal from S.D. Miss.
  • per curiam (Richman, Jones, Stewart, Haynes, Graves, Higginson, Willett, Duncan, Engelhardt, Oldham, Douglas, JJ., voting against rehearing; Smith, Elrod, Ho, JJ., voting for rehearing); Ho, J., dissenting from denial of rehearing en banc (joined by Smith, J.); § 1983
  • Denying rehearing en banc of panel opinion that affirmed dismissal of § 1983 and other claims by plaintiffs–survivors of man who committed suicide after his arrest for involvement in a scheme to take a picture of Senator’s nursing-home-bound wife for use in a campaign video. The panel had held that there was probable cause for the search and arrest of the decedent, such that the district court did not err in dismissing claims for First Amendment retaliation arising from that search and arrest. The panel also held that the district court did not err in issuing summary judgment dismissing the plaintiffs’ Lozman claim–which allows the pursuit of a First Amendment retaliatory arrest claim against a municipality despite the existence of probable cause under certain circumstances. The Court held that the plaintiffs here failed in their evidentiary burden to show the existence of those circumstances.
  • Judge Ho, who had concurred in the panel judgment only, dissented from the denial of rehearing. Grouping this case with two other recent cases, Judge Ho wrote, “If they’d ever met, they likely would’ve disagreed on countless issues. But they share at least one thing in common: They all disagreed with those in power. And they all believe that they were punished for it—that they were charged, arrested, jailed, and humiliated for the crime of criticizing those in office. They all assert that it’s wrong for officials to jail their opponents as an intimidation tactic. They all allege that that’s exactly what happened to them. And they all ask this court for the opportunity to tell their stories to a jury and prove their case in a court of law. The First Amendment doesn’t mean much if you’re only allowed to express views favored by the government. There’s not much left to freedom of speech if you have to worry about being jailed for disagreeing with public officials. Indeed, it’s hard to imagine anything more inimical to our Founding principles. … But I fear that that’s what we’re allowing. In case after case, citizens present compelling allegations that officials are abusing government power to reward allies and punish adversaries. And we stand by and let it happen. … [J]ust as we would never accept probable cause as a defense to a racially motivated prosecution, we shouldn’t accept probable cause as a defense to a politically motivated one, either.”

• U.S. v. Bopp, 22-10267, appeal from N.D. Tex.
  • Willett, J. (Smith, Higginson, Willett), criminal, restitution
  • Affirming imposition of restitution award on defendant who pled guilty to possession of material containing child pornography, where the restitution was based on victims who appeared in images on the cell phone that were not among four images specified in the indictment. Because the “material” containing child pornography to which he pled guilty was the cell phone, and not the individual image files, “all of the victims are therefore entitled to restitution—whether or not the indictment included images depicting them.”

• Neal v. Vannoy, 22-70007, appeal from E.D. La.
  • Southwick, J. (Elrod, Southwick, Graves), habeas corpus, ineffective assistance of counsel
  • Affirming grant of habeas relief on IAC claims by convicted capital murder petitioner. The Court rejected the State’s argument that the district court had applied the wrong IAC standard.

Unpublished

• U.S. v. Vicente, 22-10930, appeal from N.D. Tex.
  • per curiam (Willett, Duncan, Douglas), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Ramirez-Jimenez, 22-11174, appeal from N.D. Tex.
  • per curiam (Dennis, Engelhardt, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Penaloza-Nieto, 22-20628, appeal from S.D. Tex.
  • per curiam (Smith, Higginson, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Mason, 22-51070, appeal from W.D. Tex.
  • per curiam (Wiener, Stewart, Douglas), criminal, search and seizure
  • Affirming conviction of possession of a firearm by a felon, upholding district court’s denial of motion to suppress.

• U.S. v. Fuentes-Salgado, 23-10032, appeal from N.D. Tex.
  • per curiam (Jolly, Higginson, Duncan), criminal, sentencing
  • Granting summary affirmance of conviction and sentence for illegal reentry.

• U.S. v. Huber, 23-10035, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Brown, 23-10108, appeal from N.D. Tex.
  • per curiam (Jones, Elrod, Wilson), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Fisher, 23-10147, appeal from N.D. Tex.
  • per curiam (Smith, Higginson, Engelhardt), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Lincoln v. Harris County Sheriff’s Office, 23-20092, appeal from S.D. Tex.
  • per curiam (Jones, Willett, Duncan), § 1983
  • Dismissing appeal of dismissal of § 1983 claims in part for lack of jurisdiction and in part as frivolous.

• U.S. v. Aluiso, 23-20148, appeal from S.D. Tex.
  • per curiam (King, Graves, Higginson), criminal, supervised release
  • Affirming in part and vacating in part supervised release conditions after revocation of initial term of supervised release.

• Velandia v. Garland, 23-60056, petition for review of BIA order
  • per curiam (King, Graves, Higginson), immigration
  • Denying Venezuelan citizen’s petition for review of BIA order upholding the denial of deferral of removal under the Convention Against Torture.