Take the Fifth

Designated for publication

• U.S. v. Wilson, 25-30105, appeal from E.D. La.
  • Willett, J. (Wiener, Willett, Ho), Ho, J., dissenting; criminal, search and seizure
  • Affirming grant of motion to suppress evidence, begrudgingly.
  • The exclusionary rule has long provoked controversy, with critics deriding it as a blunt judicial tool that frees the guilty when police make mistakes. The oft-quoted Cardozo line—“the criminal is to go free because the constable has blundered”—encapsulates the concern that courts suppress probative evidence not for its falsity but because of how it was obtained. Scholars and judges have argued that the rule sacrifices truth in exchange for symbolism, rewarding offenders while punishing society. Defenders counter that rights mean little if government can benefit from lawlessness, and courts cannot sanction unconstitutional searches. Whether seen as safeguard or windfall, the rule remains binding precedent that courts must apply.
  • This case arose from a Waffle House incident in which Ricky Wilson allegedly brandished a distinctive green pistol with a drum magazine, terrifying another customer. Police later obtained a warrant to search his girlfriend’s apartment at 212 Central Avenue, citing Wilson’s connection to the residence and his past conduct. The affidavit, however, contained little beyond bare assertions: it described the building, noted that Wilson’s girlfriend rented it, and asserted that items “related to” the incident were “believed” to be inside. Officers executed the warrant and found drugs, ammunition, and a firearm. Wilson moved to suppress, and the district court agreed, holding that the affidavit failed to establish any nexus between the Waffle House assault and the apartment.
  • On appeal, the Government invoked the good-faith exception, which permits the admission of evidence if officers reasonably relied on a warrant, even if it lacked probable cause. But the exception does not apply when an affidavit is so deficient that reliance is unreasonable. Here, the affidavit never linked the pistol or any evidence from the Waffle House incident to the apartment. Unlike cases where courts upheld warrants based on direct observations or well-grounded inferences, this affidavit offered only ipse dixit assertions. Firearms, unlike passports or papers, are easily moved or discarded, and nothing suggested Wilson stored his pistol at home, especially two weeks after the incident. The affidavit thus crossed into “bare-bones” territory where good-faith reliance is impossible.
  • The court therefore affirmed suppression. Probable cause requires a factual nexus between place and evidence, and conjecture cannot substitute for cause. The magistrate’s warrant was built on speculation, not substantiated facts, and deference does not extend to such void affidavits. While the exclusionary rule carries heavy social costs and continues to fuel debate, its application here was compelled: without it, magistrates would become mere rubber stamps for hunches. The Constitution treats the home as the archetype of protected privacy, and its protections would be meaningless if faith replaced facts. The rule’s detractors may see Wilson’s escape from conviction as a windfall, but precedent and principle demand exclusion when cause is absent.
  • Judge Ho dissented. The dissent argues that longstanding precedent supports the commonsense inference that people keep personal possessions, including firearms, at home, which justifies residential searches when linked to suspected criminal activity. In Ricky Wilson’s case, police obtained a warrant to search his residence after he allegedly brandished a firearm during an altercation, and witnesses confirmed his connection to the apartment. The affidavit was detailed, not “bare bones,” and reliance on it fell within the good-faith exception to the exclusionary rule. The dissent criticizes the majority for rejecting this normal inference, distinguishing cases like Green where the residence was thousands of miles from the crime scene, unlike Wilson’s nearby apartment. It further notes that courts regularly uphold inferences that personal items such as passports, bank records, and mail are kept at home, and firearms should be treated no differently. Suppression of evidence, the dissent emphasizes, should be a last resort, and invalidating this warrant on hypertechnical grounds undermines both common sense and established circuit law.

• James v. Smith, 23-30553, appeal from E.D. La.
  • Graves, J. (Elrod, King, Graves), prisoner suit
  • Affirming in part and reversing in part dismissal of former pretrial detainee’s sec. 1983 claims against various parish jail staff arising from delay in medical treatment, and remanding for further proceedings.
  • Stephon Eric James, a pretrial detainee at the St. Tammany Parish Jail, alleged that jail officials and medical staff were deliberately indifferent to a serious infection around his longstanding prosthetic eye, causing weeks of unnecessary pain. After an initial June 1, 2022 order by CorrectHealth physician Dr. Samuel Gore for lab work, antibiotics, and twice-weekly wound care, James missed treatment when Deputy Aaron Hines failed to escort him to his first wound-care visit on June 7 and then signed an undated “refusal” form that James never saw or signed. James filed multiple grievances as swelling and infection worsened, and internal reviews first rejected, then later validated, his complaints—culminating in a Sheriff’s finding that “wound care” chart entries actually reflected routine medication pass-offs, not wound-care visits.
  • Medical access resumed only late July, after Assistant Warden Rhonda Simmons investigated video footage, confirmed James had not been brought to medical for a month, and staff acknowledged the refusal-form error. Even then, antibiotics and needed tools lagged, James could not remove the prosthesis due to swelling, and nurses minimized his symptoms. By August 10, the Sheriff concluded the records used during the grievance process were inaccurate, though he deemed the complaint addressed because treatment had finally begun.
  • Proceeding pro se, James sued under § 1983, naming Sheriff Randy Smith, Warden Daniel Fleischman, Assistant Warden Rhonda Simmons, Deputy Hines, and Doctors Gore and Ham. The magistrate judge (by consent) converted the doctors’ Rule 12(b)(6) motion—filed with medical records attached—into a Rule 56 motion for summary judgment and ultimately granted it, while also granting the St. Tammany defendants’ motion to dismiss and entering final judgment with prejudice. Throughout, James sought appointed counsel and moved repeatedly to compel discovery (including video, audio, disciplinary files, policies, and staff identities), but key requests went unresolved or were treated as moot before the doctors were actually dismissed.
  • On appeal, applying plain-error review (because James did not file objections to the report and recommendation), the Fifth Circuit held the magistrate judge plainly erred in treating the R&R as a final disposition before it was converted to an order, thereby short-circuiting discovery against the doctor-defendants. That arbitrary limitation affected James’s substantial rights because it denied a fair chance to obtain evidence central to deliberate-indifference—e.g., CorrectHealth responsibilities, monitoring procedures, and whether doctors knew or should have known wound care never occurred. The court also found clear factual disputes the magistrate judge overlooked: internal findings that “wound care” entries were inaccurate; a six-plus-week gap with no ordered wound care; and multiple grievances contradicting the view that James had not complained. Those disputes precluded summary judgment for the doctors.
  • Turning to the St. Tammany defendants, James (now with counsel) did not pursue claims against the Sheriff, Warden, or Assistant Warden, leaving only Deputy Hines. The court agreed James plausibly alleged troubling conduct by Hines—failing to escort James and filing a false refusal form—but held the complaint did not plead the subjective prong of deliberate indifference (that Hines actually knew of and disregarded a substantial risk of serious harm). Accordingly, dismissal of the claim against Hines was proper. However, because James was pro se and had not been given a meaningful chance to amend, the appellate court held dismissal should have been without prejudice. The Fifth Circuit therefore reversed the summary judgment for the doctor-defendants, affirmed the dismissal as to the St. Tammany defendants in part, but remanded with instructions to modify that dismissal to be without prejudice and for further proceedings consistent with its opinion.

• U.S. v. McGuire, 24-40109, c/w U.S. v. Lala, 24-40111, c/w U.S. v. Ragle, 24-40117, c/w U.S. v. Sargent, 24-40139, c/w U.S. v. Roberts, 24-40299, appeals from E.D. Tex.
  • Douglas, J. (King, Smith, Douglas), criminal, sentencing
  • Affirming in part and vacating in part five co-defendants’ convictions of conspiracy to commit money laundering and conspiracy to possess with intent to distribute marijuana, among individualized charges, and remanding for further proceedings.
  • A 2021 superseding indictment charged Eric Roberts, Ronald McGuire, Lowell Sargent, Christopher Shaun Ragle, and Philip Lala—plus ten others—for roles in a multi-state marijuana network. Beginning in 2018, organizer Nicholas Simonds linked up with Roberts in Texas to import marijuana and other THC products from legal states (mainly CA/OR) to customers across 21 states, first by mail and then by van. Roberts recruited drivers (including the appellants) and paid them daily to run multi-city routes using vans titled to his car business, communicating almost exclusively over encrypted Signal with codewords (“units,” “bags,” “paper”).
  • Drivers picked up or delivered boxes and duffels of marijuana, cartridges, and edibles, and returned vacuum-sealed cash to locations tied to Roberts—the Aintree residence, a Mañana Drive warehouse, and other stash points. Witnesses described pervasive marijuana odor, lack of bills of lading, and explicit instructions to avoid “drug corridors” and firearms. The sources eventually used Roberts/Simonds as transport brokers, charging by pound or cartridge; runs typically involved at least $10,000 in product, and profits were split between Roberts and Simonds.
  • Investigations in 2019–2020 by Mesquite PD and others uncovered Greenwood’s stash (cash, 30+ kg marijuana, firearms), a July 2020 New Mexico stop of McGuire’s van (112 kg marijuana, cash, THC vapes), and an August 2020 Kansas stop of Seward’s van (nearly 500 kg marijuana; documents tied to Roberts’s company and co-defendants). Surveillance of Roberts led to traffic stops and warrants yielding large quantities of marijuana/THC products, cash (~$255k in a safe), a vacuum sealer, numerous firearms, and extensive THC inventory moved between the warehouse and a storage unit.
  • Phones seized from Roberts were analyzed by Investigator Offutt, who created Exhibit 190—a Rule 1006 summary spreadsheet that attributed drug quantities to drivers using Signal messages and a global “average” trip weight of 506 lbs multiplied by an asserted number of trips. After an eight-day trial where eight co-defendants testified, the jury convicted all five appellants of conspiracy to possess with intent to distribute ≥1,000 kg marijuana and conspiracy to commit money laundering; Roberts was also convicted of a § 924(c) count, while McGuire was acquitted on his § 924(c) count. Sentences ranged from 48 to 240 months, with Roberts receiving consecutive terms.
  • On appeal, Sargent and McGuire argued Exhibit 190 was inadmissible under Rule 1006. Because trial objections didn’t preserve the specific mathematical-inaccuracy theory, the court reviewed for plain error and found error: Exhibit 190 “guesstimated” unknown quantities by extrapolating a flawed 506-lb “average,” contained math mistakes and unexplained trip groupings, and effectively “assumed what had to be proved.” The error was clear, affected substantial rights (drug-quantity threshold), and warranted discretionary correction—but only as to sentencing. The panel thus affirmed the drug-conspiracy convictions yet remanded for resentencing.
  • Lala separately challenged the sufficiency of the evidence on the ≥1,000-kg finding. Applying de novo review but viewing the trial record (including Exhibit 190) in the light most favorable to the verdict, the court held a rational jury could find the threshold satisfied; credibility disputes and impeachment of Offutt went to weight, not legal sufficiency. Lala’s drug-conspiracy conviction therefore stood.
  • Three appellants attacked Guidelines drug-quantity findings. For McGuire, the district court relied on the PSR’s adoption of Exhibit 190; because that summary lacked adequate indicia of reliability and replaced known weights with unexplained averages, the panel vacated McGuire’s sentence and remanded for a reliable drug-weight determination. Sargent’s counsel conceded foreseeability of conspiracy quantities at sentencing, so his sentence was affirmed. Any error in Lala’s drug-weight calculation was harmless because the district court stated it would impose the same sentence based on articulated § 3553(a) reasons.
  • Roberts’s continuing criminal enterprise (“CCE”) conviction survived two attacks. First, the CCE count was facially deficient because it identified only the conspiracy as a predicate and did not list two additional “continuing series” violations; however, the deficiency was harmless: Roberts had sufficient notice in context, and a rational grand jury would have found probable cause for properly specified predicates. Second, under plain-error review, the court rejected a constructive-amendment claim based on jury instructions identifying substantive predicate offenses related to the same marijuana scheme; the instructions did not broaden the indictment to a different crime or prejudice the defense.
  • On the money-laundering conspiracy count, the court drew a line between concealment and promotion theories. It held the record did not establish domestic concealment money laundering under § 1956(a)(1)(B)(i) because use of cash and secretive transport showed “how,” not a purpose “designed to conceal.” But the evidence was sufficient on promotional money laundering under § 1956(a)(1)(A)(i): drivers knowingly transferred drug proceeds to Roberts/Simonds, payments promoted continued trafficking (including buying more marijuana and compensating participants), and each appellant’s role/supporting testimony permitted a rational jury to find an agreement to conduct financial transactions with the intent to further the scheme.
  • Two additional housekeeping rulings rounded out the disposition. Roberts’s § 924(c) sentence was vacated under Alleyne because the jury did not find the short-barreled-rifle fact that drove the mandatory minimum; Count 6 was remanded for resentencing. And all affected judgments/PSRs contained clerical errors listing international rather than domestic theories; the court ordered corrections limited to domestic promotional money laundering. Venue was affirmed under circuit law permitting prosecution where any conspirator’s acts furthered the offense. Bottom line: convictions broadly affirmed; McGuire’s and Roberts’s sentences partially vacated; multiple clerical corrections ordered; selective resentencings on remand.

• U.S. v. Texas, 24-50149, appeal from W.D. Tex.
  • per curiam (en banc), mootness, immigration, preliminary injunction, standing, preemption, political question, en banc
  • Vacating July 3, 2025, panel opinion (Richman, Oldham, Ramirez; Oldham, J. dissenting), 185 pages of majority and dissenting opinions, dismissing as moot, in part, appeal from grant of preliminary injunction against Texas’s S.B. 4, which prohibits noncitizens from illegally entering or reentering the state, after U.S. voluntarily dismissed its complaint; and affirming preliminary injunction as sought by other plaintiffs; and ordering en banc rehearing.

• U.S. v. Wadi, 24-50160, appeal from W.D. Tex.
  • Wilson, J. (Stewart, Clement, Wilson), criminal, terrorism
  • Affirming conviction of conspiracy to murder and maim persons in a foreign country, conspiracy to provide and attempt to provide material support to a designated foreign terrorist organization, and conspiracy to provide and attempt to provide material support to terrorists.
  • Iman Wadi, a Syrian-born U.S. citizen, was convicted after trial of conspiring to murder and maim persons abroad, and of conspiring to provide material support to terrorists and to a designated foreign terrorist organization, Jabhat al-Nusra. The government’s case showed that Wadi and his partner, Ahmed Barodi, sought millions in investment for a Colombian halal-beef business, but eagerly agreed to funnel five percent of any such funding to al-Nusra. They pressed an undercover FBI agent, posing as an investor’s representative, to release funds quickly so the money could reach al-Nusra for weapons and attacks. Evidence showed Wadi knew al-Nusra was engaged in killing civilians and conducting bombings, and he nevertheless helped set up shell companies, foreign bank accounts, and contacts with arms dealers to conceal and expedite support. In June 2021, the FBI ended the operation and Wadi was arrested and later sentenced to concurrent 160-month prison terms.
  • On appeal, Wadi challenged his convictions on six grounds. He argued the district court erred by excluding his son’s testimony about financial hardship, by limiting his cross-examination of the FBI’s informant Baker, by denying his motion for acquittal under § 956, by refusing to instruct the jury on combatant immunity, by instructing that al-Nusra was a designated foreign terrorist organization, and by refusing to sanction the government over Baker’s failure to preserve data on his cellphone. The Fifth Circuit rejected each argument. It held the exclusion of his son’s testimony fell within Rule 403’s balancing of probative value and prejudice, and that Wadi had still been able to argue entrapment through other evidence. His claim of limited cross-examination was unsupported by the record. His sufficiency-of-the-evidence challenge failed because he had not properly preserved specific arguments, and in any event, the record contained ample proof of conspiracy to murder and maim.
  • The court further found that Wadi was not entitled to a combatant-immunity instruction, since al-Nusra’s killings of civilians were unlawful under the laws of war. The jury instruction correctly stated that al-Nusra was designated a terrorist organization by law, consistent with statutory requirements and pattern instructions. Finally, the court upheld the district court’s refusal to dismiss the indictment or issue a spoliation instruction over Baker’s cellphone, finding no evidence of government bad faith. Concluding that none of Wadi’s claims showed reversible error, the Fifth Circuit affirmed all convictions and sentences.

• La Union del Pueblo Entero v. Abbott, 24-50826, appeal from W.D. Tex.
  • Duncan, J. (Smith, Graves, Duncan), Graves, J., dissenting; Voting Rights Act, election law, preemption, standing
  • Reversing and vacating injunction of voter-assistance provisions of Texas’s S.B.1 as preempted by section 208 of the Voting Rights Act, and remanding for further proceedings.
  • The Fifth Circuit reviewed challenges to several voter-assistance provisions in Texas’s S.B. 1 that the district court had enjoined as preempted by Section 208 of the Voting Rights Act (VRA). The appellate court reversed, vacated the injunction, and remanded. It held that the plaintiff organizations largely lacked standing to challenge S.B. 1’s disclosure and oath requirements, and that even where standing existed to contest S.B. 1’s compensation-related provisions, those provisions were not preempted by Section 208.
  • First, the court described S.B. 1’s relevant parts: disclosure rules requiring assistors to list their name, address, relationship to the voter, and whether they are compensated (for in-person and mail voting); an amended oath clarifying it is taken under penalty of perjury and that the voter represented eligibility for assistance; and compensation bans penalizing paying for, or receiving payment for, assisting mail voters or for compensated “vote harvesting” activities.
  • On standing, the court held no organization had standing—associational or organizational—to challenge the disclosure or oath provisions. Fears that members might be prosecuted were speculative and unsupported by evidence of violations, investigations, or prosecutions; alleged “chilling effects,” recruitment difficulties, or resource diversion were insufficient; and minor delays at the polls were mere “usual burdens of voting.” By contrast, certain organizations had standing to challenge the compensation provisions because they engaged in, or intended to continue, conduct arguably proscribed and faced a credible threat of prosecution.
  • Turning to preemption, the court rejected the district court’s conclusion that Section 208—guaranteeing assistance from “a person of the voter’s choice” (with employer/union exceptions)—implicitly bars states from adding any other limits on who may assist. Applying the presumption against preemption in the election-administration sphere and the “purposes and objectives” standard’s high threshold, the court reasoned that Section 208 does not clearly and manifestly displace state rules like bans on paid assistors or paid ballot harvesting. Reading Section 208 to forbid all such limits would produce untenable results (e.g., preventing states from disqualifying minors, candidates, electioneers, armed individuals, or prisoners from assisting).
  • The court further explained that OCA-Greater Houston v. Texas did not control because it concerned the VRA’s definition of “to vote,” not the meaning of “a person of the voter’s choice.” It also found the district court misapplied the expressio unius canon: Congress’s exclusion of employers and unions does not imply states cannot exclude other categories, especially where the state’s criteria (compensation/harvesting) are conceptually different from the federal exclusions (relationship to the voter). Finally, the Senate Report on Section 208 is not law, cannot overcome the presumption against preemption, and in any event recognizes states’ legitimate authority to set protective election procedures. Accordingly, the compensation provisions are not preempted, and the injunction is vacated.
  • Judge Graves dissented. He would hold that Texas’s S.B. 1 is unlawful in two key ways: its compensation bans violate § 208 of the Voting Rights Act (VRA), and plaintiffs have standing to challenge S.B. 1’s revised Oath and new Disclosure provisions. S.B. 1 (2021) tightened rules around voter assistance by (1) expanding the required oath for assistors and making violations a state-jail felony; (2) adding disclosures of an assistor’s relationship to the voter and any compensation from campaigns or PACs; and (3) criminalizing compensated assistance with mail ballots and compensated “vote harvesting,” defined as in-person interactions in the presence of a ballot intended to deliver votes for a candidate or measure. Four plaintiff groups challenged these: HAUL-MFV (Delta Sigma Theta and The Arc of Texas), OCA plaintiffs (OCA–Greater Houston and the League of Women Voters of Texas), LUPE plaintiffs (LUPE, MABA, FIEL), and LULAC.
  • On standing, Judge Graves faults the majority’s view that fears of enforcement are speculative. The Arc shows associational standing through members who forwent their preferred assistors after S.B. 1 due to credible fears of jeopardy under the revised oath; the oath’s new certifications (e.g., not “pressur[ing] or coerc[ing]” a voter and not later “communicat[ing]” how the voter voted) are vague and chill assistance. Organizational standing is also established: Delta Sigma Theta diverted substantial time and money from registration/mobilization to compliance education; LUPE lost staff capacity and turned away would-be beneficiaries; MABA saw volunteer recruitment dry up—driven by uncertainty over the “pressure” clause; and FIEL experienced a roughly 75% volunteer drop, effectively halting in-person assistance. These are concrete impairments to core activities, not self-inflicted advocacy costs, and satisfy injury-in-fact, traceability, and redressability.
  • On the merits, Judge Graves concludes the compensation bans are preempted by § 208 because they narrow the voter’s statutory right to assistance “by a person of the voter’s choice,” which Congress limited only by two explicit exceptions (employer/union agents). Text, structure, and legislative history show Congress meant to guarantee voter-chosen assistance and to displace conflicting state limits; the VRA’s federalism costs were contemplated and accepted by Congress. Texas’s appeal to “absurdity” fails: general, content-neutral constraints (e.g., bans on firearms in polling places, rules against electioneering, practical limits on prisoners) already address the majority’s hypotheticals without restricting the pool of assistors. Because S.B. 1’s compensation rules directly shrink the class of eligible helpers beyond § 208’s enumerated exceptions—and the oath/disclosure changes chill assistance through vagueness and threat of prosecution—the dissent would find § 208 preemption and recognize standing to challenge the oath and disclosures, and therefore respectfully dissent.

Unpublished decisions

• U.S. v. Myers, 25-10109, appeal from N.D. Tex.
  • per curiam (Stewart, Graves, Oldham), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Centeno, 25-10469, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Jones v. City of Dallas, 24-10803, appeal from N.D. Tex.
  • per curiam (Jones, Graves, Rodriguez, by designation), Title VII, employment discrimination, Americans with Disabilities Act
  • Affirming summary judgment in favor of City on plaintiff’s Title VII and ADA discrimination claims.

• Krell v. American Bureau of Shipping, 24-20438, appeal from S.D. Tex.
  • per curiam (Stewart, Clement, Wilson), maritime law, federal officer removal, removal
  • Reversing the district court’s grant of a motion to remand a maritime tort case that had been removed under federal officer jurisdiction, holding that the American Bureau of Shipping had demonstrated that it qualified for federal officer status.

• Creppel v. Cashio, 24-30191, appeal from M.D. La.
  • per curiam (Wiener, Willett, Wilson), prisoner suit
  • Reversing dismissal of Louisiana state prisoner’s sec. 1983 claim, and remanding with order to change dismissal to “without prejudice.”

• U.S. v. Carson, 25-40058, appeal from S.D. Tex.
  • per curiam (Wiener, Willett, Wilson), criminal, sentencing
  • Vacating sentence that included a supervised release term beyond the statutory maximum, and remanding for resentencing.

• U.S. v. Vargas-Maldonado, 25-50058, appeal from W.D. Tex.
  • per curiam (Wiener, Willett, Wilson), criminal, sentencing
  • Affirming sentence on conviction of illegal reentry.

• Perez-Ordonez v. Bondi, 23-60014, petition for review of BIA order
  • Richman, J. (Richman, Haynes, Duncan), immigration
  • Denying Guatemalan citizens’ petition for review of BIA order finding petitioners ineligible for asylum.