Take the Fifth

Designated for publication

• U.S. v. Elkins, 24-10753, appeal from N.D. Tex.
  • Richman, J. (Smith, Dennis, Richman) (oral argument), Dennis, J., concurring; criminal, sentencing
  • Affirming conviction and concurrent five-year and life sentences for conspiracy to stalk and cyberstalking using a dangerous weapon and resulting in death; but vacating conviction and consecutive life sentence for using, carrying, brandishing, and discharging a firearm during a crime of violence.
  • Holly Ann Elkins and her fiancé, Andrew Beard, engaged in an escalating campaign of stalking and harassment against Beard’s ex-girlfriend, Alyssa Burkett, the mother of Beard’s child, in an attempt to gain sole custody of the child, including use of GPS tracking, false 911 reports, planting contraband, and ultimately participating in a plot that led to Burkett’s murder.
  • Elkins challenged her § 924(c) conviction on appeal, arguing that the predicate offense (cyberstalking resulting in death under 18 U.S.C. §§ 2261A(2) and 2261(b)) is not a “crime of violence” because it does not have as an element the use, attempted use, or threatened use of physical force. Applying the categorical approach required for § 924(c)(3)(A), the panel held that § 2261A(2) is divisible into subsections (A) and (B). Because the jury instructions permitted conviction under either subsection and the court could not determine which the jury relied on, the court examined the least serious conduct under subsection (B). That subsection criminalizes conduct that causes or would reasonably be expected to cause substantial emotional distress, which can be committed without any physical force and thus does not categorically qualify as a crime of violence.
  • As a result, the Fifth Circuit vacated Elkins’s conviction and life sentence on Count Three (§ 924(c)) but affirmed the remainder of the district court’s judgment. The panel explained that even if death results from a stalking offense under subsection (B), the statutory elements still do not require the use or threatened use of physical force; merely causing emotional distress—even if that distress leads to death—fails the elements clause of § 924(c). Because of this statutory interpretation, the predicate offense could not support a § 924(c) conviction.
  • Judge Dennis concurred separately “to make explicit what the majority opinion, in its careful phrasing, necessarily establishes: Borden v. United States, 593 U.S. 420 (2021), abrogated In re Hall, 979 F.3d 339 (5th Cir. 2020), in at least two respects. First, Hall’s holding that crimes committed with a mens rea of recklessness satisfy the elements clause has been abrogated. 979 F.3d at 344–46. Second, Hall’s application of the realistic probability test outside its limited context of federal courts interpreting state statutes has likewise been abrogated. … We are therefore not following Hall today because Borden and its progeny supply an intervening change in the law.”

• Wang v. Paxton, 25-20354, appeal from S.D. Tex.
  • Oldham, J. (Wiener, Engelhardt, Oldham) (oral argument), standing, taking
  • Affirming dismissal of plaintiff’s constitutional challenge to Texas law prohibiting individuals domiciled in China and other specified countries from acquiring various property interests in Texas, on basis that plaintiff lacked standing because he was domiciled in Texas.
  • The court affirmed the district court’s dismissal of Wang’s pre-enforcement challenge to Texas Senate Bill 17 (SB 17), a statute that bars individuals “domiciled in” certain designated foreign countries (including China) from acquiring real estate in Texas. The panel explained that to bring such a challenge, a plaintiff must allege a concrete, imminent injury—specifically that (1) he intends to engage in conduct arguably proscribed by the statute, (2) the statute arguably covers that conduct, and (3) there is a substantial threat of enforcement. Applying this test, the court found Wang lacked standing because he failed to show that SB 17 arguably proscribed his conduct: although a Chinese citizen, Wang has lived in Texas for sixteen years, intends to remain in the state after graduation, and has no intent to return to China, so he is not “domiciled” in China under the statute’s plain language.
  • The court also held Wang could not show a substantial threat of enforcement. The Texas Attorney General repeatedly represented in court that SB 17 “does not” and “cannot” be applied to him, and there was no evidence the statute had been enforced against him or that enforcement procedures had even been established. The panel rejected Wang’s reliance on a presumption of enforcement outside the First Amendment context, explaining that such presumptions are limited to free-speech challenges. Because Wang failed to allege an injury-in-fact, the court concluded it lacked jurisdiction and affirmed the dismissal.

• U.S. v. Page, 23-40621, appeal from E.D. Tex.
  • Southwick, J. (Southwick, Oldham, Ramirez) (oral argument), criminal, recusal, jury instructions, sufficiency of evidence
  • Affirming convictions of conspiracy to commit bank fraud and conspiracy to commit money laundering.
  • Jon Phillip Page, Jr. and his brother Thomas sought multimillion-dollar loans from a bank by submitting fabricated securities-account statements created by co-defendant Clayton Wertz. Over several years, the brothers obtained millions in loan proceeds but diverted funds for personal use and to pay Wertz for the fraudulent statements. The fraud was discovered in 2019 when the bank became suspicious; Wertz confessed and later assisted the government. In 2020, the Pages and Wertz were indicted. Thomas and Wertz eventually pled guilty to the bank-fraud conspiracy (with the money-laundering conspiracy dismissed as to Wertz), while Page went to trial in early 2023 and was convicted on both counts following a one-week jury trial. Page was sentenced to 63 months’ imprisonment and timely appealed.
  • Page first argued the district judge should have recused himself due to prior representation of the victim bank, but the Fifth Circuit held there was no clear or obvious obligation to recuse under 28 U.S.C. § 455(a), especially given the unrelated nature of the prior representation. On Confrontation Clause and related issues about co-conspirator pleas, the court rejected Page’s claim that Thomas’s guilty plea at the start of trial violated his rights, explaining that neither the indictment nor bare plea was “testimonial” in the requisite constitutional sense and did not directly implicate Page in a Bruton context. The court also upheld the district court’s handling of plea paperwork and limiting instructions, finding appropriate curative instructions and no abuse of discretion in admitting or explaining the pleas.
  • Page challenged several evidentiary rulings, including admission of Wertz’s earlier affidavit, a WhatsApp message, inculpatory statements, photographs, and government summary charts. The Fifth Circuit applied Rule 403 balancing and harmless-error principles, concluding that even if some rulings were close, any errors did not affect Page’s substantial rights in light of the strong and cumulative evidence of guilt and the curative instructions given. On Page’s claim that the superseding indictment was motivated by a desire to prevent calling Thomas as a defense witness (a pre-indictment delay/due-process issue), the court upheld the denial of dismissal, deferring to the district court’s plausible explanation of legitimate timing and strategy and noting Page failed to proffer what Thomas would have testified to if available.
  • The Fifth Circuit also rejected Page’s arguments about denied jury instructions (e.g., apparent authority or a theory-of-the-case instruction), holding that the instructions given adequately covered his defensive theories. Finally, the court affirmed the sufficiency of the evidence supporting the convictions and declined to grant relief under the cumulative-error doctrine, concluding Page received a fair trial.

• Jackson v. Duff, 25-60020, appeal from S.D. Miss.
  • Smith, J. (Smith, Stewart, Haynes) (oral argument), employment discrimination, equal protection, qualified immunity
  • Affirming denial of motion to dismiss on qualified immunity grounds the plaintiff’s protection sex discrimination claims, after she was not hired to be President of Jackson State University.
  • The panel affirmed the district court’s denial of qualified immunity to individual members of the Mississippi Board of Trustees of State Institutions of Higher Learning in a § 1983 equal-protection suit brought by Debra Mays Jackson, a senior administrator at Jackson State University who was twice passed over for the presidency. Jackson alleged that, in 2020 and again in 2023, the Board members discriminated against her on the basis of sex by first appointing an interim male president without a meaningful search and later selecting Marcus Thompson—who had not even applied and who lacked comparable administrative experience—while denying Jackson an interview. The district court dismissed most claims against the individual defendants but allowed Jackson’s § 1983 equal-protection claim based on the 2023 hiring decision to proceed. On appeal, the Board members challenged that denial on qualified-immunity grounds.
  • The Fifth Circuit, applying de novo review, held that Jackson had pleaded both a plausible equal-protection violation and that the right at issue was clearly established. The court explained that her complaint, accepted as true at the motion-to-dismiss stage, sufficiently alleged the traditional McDonnell Douglas factors for discrimination: she was a qualified woman who was rejected for the position while a less-qualified man was selected. Importantly, by naming each Board member and alleging they voted to hire Thompson, she also plausibly alleged individual causation necessary under § 1983. Because intentional sex discrimination in public employment violated clearly established law at the time of the conduct, qualified immunity was inappropriate at this early stage, and the judgment denying dismissal was affirmed. The panel expressly made no determination on the ultimate merits beyond the pleadings.

Unpublished decisions

• Winder v. U.S., 25-10297, appeal from N.D. Tex.
  • per curiam (Higginbotham, Ho, Douglas) (oral argument), Federal Tort Claims Act, jurisdiction
  • Affirming dismissal of FTCA claims against U.S. for Army chaplain’s alleged role in the death of plaintiff’s husband, based on lack of subject matter jurisdiction under the ecclesiastical abstention doctrine.

• U.S. v. Shoulders, 24-10600, appeal from N.D. Tex.
  • per curiam (Dennis, Graves, Duncan) (oral argument), Dennis, J., concurring (w/o separate opinion); criminal, jury instructions, sufficiency of evidence
  • Affirming conviction of conspiracy to commit health care fraud.

• Ramirez v. Granado, 24-10755, appeal from N.D. Tex.
  • per curiam (Dennis, Oldham, Douglas) (oral argument), Dennis, J., concurring; Oldham, J., dissenting; qualified immunity
  • Reversing summary judgment dismissal of plaintiff’s claims against officer defendants for the shooting death of her son, on qualified immunity grounds, and remanding for further proceedings.
  • The per curiam majority holds that the district court erred in granting summary judgment to Officer Jonathan Granado on qualified-immunity grounds because genuine disputes of material fact exist regarding whether his use of deadly force against Estevan Ramirez was objectively reasonable. After a high-speed chase ended and Ramirez fled on foot, Granado fired one initial shot during a brief physical encounter between Ramirez and another officer, then fired six additional shots as Ramirez ran away, striking him in the back of the head and shoulders. The majority emphasizes that excessive-force analysis must be moment-by-moment and that force initially justified can become unconstitutional if the threat dissipates. Viewing the evidence in the light most favorable to the plaintiff, a reasonable jury could find that Ramirez no longer posed an immediate threat when the later shots were fired, particularly given conflicting officer testimony, body-camera footage, the autopsy showing all bullet trajectories from back to front, and Granado’s own contemporaneous question—“did he have a gun?”—immediately after the shooting.
  • The court further concludes that, under the plaintiff’s version of the facts, Granado’s conduct would violate clearly established law. It has long been settled that an officer may not use deadly force against a fleeing suspect who does not pose an immediate threat to officers or others. If a jury credits evidence that Granado did not know Ramirez was armed, never saw him point or swing a weapon, and shot him as he fled with his back turned, then Granado’s actions would fall squarely within that prohibition. Because resolving these competing factual narratives requires credibility determinations reserved for a jury, the Fifth Circuit reverses the grant of summary judgment and remands for further proceedings.
  • Judge Dennis concurred separately to address Judge Oldham’s dissent, contending that the dissent fundamentally misunderstands the summary-judgment standard by resolving disputed facts that must be left to a jury. Judge Dennis emphasizes that the dissent improperly chooses among competing inferences, accepts post-hoc officer justifications as undisputed truth, and strips critical context from the record. In Judge Dennis’s view, substantial evidence—radio transcripts, officer statements, body-camera footage, autopsy results, and contemporaneous comments—creates genuine disputes about what Officer Granado actually knew and what Ramirez actually did in the moments before he was shot. A reasonable jury could doubt whether Ramirez ever pointed a gun, whether officers had reason to suspect him of prior crimes, and whether Granado genuinely perceived an imminent threat, especially given evidence showing Ramirez fleeing with his back turned and all bullet wounds traveling back-to-front. Under settled precedent, Judge Dennis stresses, courts may not resolve such conflicts at summary judgment.
  • Turning to the dissent’s heavy reliance on precedent, Judge Dennis argues that its citations are largely irrelevant because they fall into two inapposite categories: cases involving overt, immediate threats directed at officers, and cases involving sudden furtive movements toward concealed areas suggesting weapon retrieval. Neither category matches the plaintiff-favorable version of the facts here, where Ramirez was running away in full view, never pointed or fired his weapon, and was shot without warning. Importing those doctrines, Judge Dennis contends, collapses carefully drawn distinctions in Fourth Amendment law and ignores the factual predicates that justified deadly force in those cases. Ultimately, Judge Dennis concludes that the dissent’s “tower of citations” cannot overcome the presence of genuine factual disputes, and that the majority correctly honors both the summary-judgment standard and the jury’s constitutional role by reversing and remanding.
  • Judge Oldham dissented, contending that the majority ignores undisputed, video-recorded facts showing that Officer Granado confronted an armed suspect moments after a 120-mph chase involving occupants reported as armed and dangerous, culminating in an eight-second, nighttime encounter in a residential area where Estevan Ramirez exited the vehicle holding a gun with his finger on the trigger while an officer stood only feet away. Given this context, the dissent contends that qualified immunity plainly applies under a vast body of Supreme Court and circuit precedent routinely granting immunity in far less dangerous circumstances, and that the absence of a “squarely governing” case forbidding Granado’s conduct mandates immunity rather than ad hoc justice. The dissent further criticizes the concurrence for misallocating the burden of proof, reimagining immaterial factual disputes, and improperly focusing on what the officer “actually knew” instead of whether clearly established law prohibited the shooting under any plausible version of the facts. Warning that the court is repeating an error previously summarily reversed by the Supreme Court, the dissent concludes that this decision unjustifiably second-guesses split-second police judgments and will make already dangerous law-enforcement work significantly harder.

• Harris v. Meridian Security Insurance Co., 25-10778, appeal from N.D. Tex.
  • per curiam (Jones, Duncan, Douglas) (no oral argument), insurance, settlement
  • Affirming district court’s order enforcing a settlement agreement.

• U.S. v. McGloshen, 25-30276, appeal from E.D. La.
  • per curiam (Davis, Jones, Ho) (no oral argument), criminal, sentencing
  • Affirming sentence on revocation of supervised release.

• ENSCO Offshore, L.L.C. v. Cantium, L.L.C., 24-30508, appeal from E.D. La.
  • per curiam (Elrod, Higginbotham, Ramirez) (oral argument), Elrod, C.J., concurring; breach of contract, maritime law
  • Affirming summary judgment dismissal of defendant’s counter-claim in parties’ dispute arising from performance of master offshore drilling services contract.
  • Chief Judge Elrod concurred separately “to highlight an unsettled question in our law of maritime contract pertaining to exemptions from liability for acts of gross negligence.”

• U.S. v. Aguirre, 25-40067, appeal from S.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Ramirez, 25-50109, appeal from W.D. Tex.
  • per curiam (Higginbotham, Engelhardt, Ramirez) (no oral argument), criminal, sentencing
  • Affirming 57-month sentence on conviction of possession of a firearm by a felon.

• U.S. v. Rodriguez-Ortiz, 25-50138, appeal from W.D. Tex.
  • per curiam (Elrod, Higginson, Ramirez) (no oral argument), criminal, sentencing
  • Affirming 36-month sentence on conviction of illegal reentry.

• U.S. v. Garcia-Arriaga, 25-50377, appeal from W.D. Tex.
  • per curiam (Wiener, Willett, Wilson) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• U.S. v. Guiterrez-Martinez, 25-50402, appeal from W.D. Tex.
  • per curiam (Richman, Southwick, Willett) (no oral argument), criminal, sentencing
  • Affirming 12-month sentence on conviction of illegal reentry.

• U.S. v. Martinez-Orozco, 25-50450, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Collins v. M&T Bank, 25-50512, appeal from W.D. Tex.
  • per curiam (Dennis, Haynes, Ramirez) (no oral argument), foreclosure
  • Affirming dismissal of plaintiff’s suit arising from foreclosure on his home mortgage.

• U.S. v. Gonzalez-Dominguez, 24-50710, appeal from W.D. Tex.
  • per curiam (Dennis, Graves, Duncan) (no oral argument), criminal, sentencing
  • Vacating sentence after guilty plea to illegal reentry, on basis of Appredi error, and remanding for resentencing.

• Thomas v. City of Jackson, 25-60299, appeal from S.D. Miss.
  • per curiam (Duncan, Jones, Douglas) (no oral argument), employment discrimination, Title VII
  • Affirming summary judgment dismissal of plaintiff’s sex discrimination claims arising from denial of application of police officer to rejoin SWAT unit.