Take the Fifth

Designated for publication

• In re Naoise Connolly Ryan, No. 25-11253, c/w 25-11254, on petitions for writ of Mandamus to N.D. Tex.
  • per curiam (Southwick, Duncan, Engelhardt) (oral argument), mootness, criminal, Crime Victims’ Rights Act, mandamus
  • Denying writs of mandamus sought by families of victims of Boeing air crash that challenged a Deferred Prosecution Agreement and a subsequent non-prosecution agreement between the Department of Justice and Boeing.
  • Following two Boeing 737 MAX crashes — Lion Air Flight 610 in October 2018 (189 killed) and Ethiopian Airlines Flight 302 in March 2019 (157 killed) — the Department of Justice charged Boeing with conspiracy to defraud the United States. The DOJ initially entered a Deferred Prosecution Agreement (DPA) with Boeing, which the district court approved. In 2024, the DOJ notified the court that Boeing had breached the DPA by failing to implement adequate compliance programs. The DOJ then conferred with victims’ families via a May 2025 video call about resolving the case through a non-prosecution agreement (NPA), under which Boeing would pay fines and undertake remedial actions in exchange for dismissal of charges. The NPA was signed and the district court granted the DOJ’s motion to dismiss. Families of the crash victims filed two mandamus petitions challenging both the original 2021 DPA and the 2025 NPA/dismissal under the Crime Victims’ Rights Act (CVRA).
  • At issue on the petitions for mandamus was (1) whether the families’ challenge to the 2021 DPA was moot after Boeing breached it; (2) whether the DOJ violated the CVRA’s conferral and fairness requirements in negotiating the 2025 NPA; and (3) whether the court had jurisdiction under the CVRA to review the substantive merits of the district court’s Rule 48 dismissal.
  • The court held that the challenge to the 2021 DPA was moot. Because Boeing violated the DPA, its terms no longer bound the parties, and any challenge based on those terms became moot. The court noted: “It is irrelevant that the 2025 NPA relied on the DPA’s penalty calculations. Nothing in the record suggests the Department did so because it believed itself still bound by the DPA.”
  • On the 2025 NPA, the court found the DOJ satisfied the CVRA’s conferral requirement through the May 2025 video call, during which it “compare[d] [its] views” with those of the families. The court rejected the families’ claim that the DOJ misled them about the NPA’s timing, noting the prosecution “never suggested it would wait for a dismissal before entering the NPA” and in fact “suggested the opposite.” The court also found the DOJ was not misleading about the ability to refile charges, because the pending § 371 charge was “not time-barred” when the NPA was signed since “the prosecution tolled limitations by filing an information in 2021.”
  • On the Rule 48 dismissal, the court held it lacked jurisdiction under the CVRA to perform substantive review, reasoning that the CVRA’s mandamus provision “confers no jurisdiction to review the underlying merits of a Rule 48 dismissal.” The court declined “to read into the CVRA an unlimited right for victims to appeal the dismissal of criminal prosecutions,” calling such a right “inconsistent with the basic proposition that nonparties lack a ‘judicially cognizable interest’ in the prosecution of another.”

• Briar Capital Working Fund Capital, L.L.C. v. Remmert, 25-20176, appeal from S.D. Tex.
  • Duncan, J. (Richman, Duncan, Oldham) (oral argument withdrawn), bankruptcy, Rule 50
  • Affirming jury verdict in favor of debtor’s COO on claim brought by creditor, holding that sufficiency of evidence challenge was waived by failure to file either a Rule 50(a) or Rule 50(b) motion.
  • South Coast Supply Company, an oil and gas distribution company, filed for Chapter 11 bankruptcy in 2017 after suffering losses from the 2014 oil price decline. Before bankruptcy, South Coast’s COO Robert Remmert had loaned $800,000 to the company; South Coast repaid him $320,628.04 via thirty-one checks. South Coast’s confirmed bankruptcy plan assigned a preference claim against Remmert to Briar Capital, which had been South Coast’s secured lender. After a prior jurisdictional appeal, the case went to a jury trial in the district court, where the jury found that Briar Capital had not established that the loan payments to Remmert allowed him to receive more than he would have under a hypothetical Chapter 7 liquidation. Briar Capital did not file a Rule 50(a) motion for judgment as a matter of law, a Rule 50(b) postverdict motion, or a Rule 59 motion for new trial.
  • The issues on appeal were (1) whether Briar Capital waived appellate review of the sufficiency of the evidence by failing to file Rule 50 motions, and (2) whether plain error review was available as an alternative.
  • The court held that Briar Capital’s admitted failure to file Rule 50(a) or 50(b) motions left the court “powerless to review the sufficiency of the evidence,” citing Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006), and its progeny. The court quoted: “[A] party who wishes to appeal on grounds of insufficient evidence must make a Rule 50(b) motion for judgment as a matter of law after the jury’s verdict.”
  • Briar Capital argued plain error review should still be available, citing several Fifth Circuit cases, but the court rejected this, noting that a different panel in Johnson v. Moring (2025) had already “rejected this exact argument,” holding: “our earliest cases following Unitherm held that we are powerless to review sufficiency of the evidence absent a Rule 50(b) motion, even for plain error.”
  • Even assuming plain error review applied, the court found Briar Capital could not prevail because there was “some evidence” supporting the verdict — the jury heard testimony that South Coast’s assets may have been undervalued and that certain obligations may have been collectible. The court noted that Briar Capital’s charts and calculations were presented only during closing argument, “which does not count as evidence,” and emphasized: “If any evidence exists that supports the verdict, it will be upheld.”

Unpublished decisions

• Austin Shuler’s Best Lawns, Inc. v. M. Shapiro Management Co., L.L.C., 25-50556, appeal from W.D. Tex.
  • per curiam (Stewart, Graves, Oldham) (no oral argument), breach of contract
  • Affirming judgment on jury verdict for defendant in breach of contract claim.
  • A lawncare company sued a property-management company for breach of contract, alleging that the defendant’s cancellation notice was sent only 72 days before the contract’s expiration rather than the required 90 days, meaning the contract auto-renewed for two years. At trial, the jury found that the defendant substantially complied with the contract and returned a take-nothing judgment. The Fifth Circuit found no reversible error and affirmed.

• Wesley v. Neal, 24-40731, appeal from E.D. Tex.
  • per curiam (Jones, Engelhardt, Summerhays, by designation) (no oral argument), prisoner suit, service of process
  • Affirming dismissal of Texas state prisoner’s § 1983 claims.
  • Logan Wesley, III, a Texas prisoner proceeding pro se, brought a 42 U.S.C. § 1983 action against jail officials stemming from an alleged assault by another inmate that left him with a broken jaw. He claimed various constitutional violations—including failure to protect, delayed medical treatment, placement on suicide watch, denial of food, and supervisory liability. The district court dismissed claims against Sheriff Neal, Captain Walker, and Sergeant Malone with prejudice for failure to state a claim, dismissed claims against Holt, Novell, and Adams without prejudice for failure to effect service, and dismissed a remaining claim against Malone without prejudice for failure to prosecute.
  • On appeal, Wesley challenged the service-of-process dismissals, the denial of motions to amend, a motion to disqualify opposing counsel, and the merits of certain Rule 12(b)(6) dismissals. The Fifth Circuit found that Wesley attempted to serve defendants himself in violation of state and federal rules and thus failed to show valid service. It further found that Wesley abandoned his challenge to the denial of his motions to amend by failing to identify error, failed to demonstrate a substantial relationship between the former and present representations needed for disqualification, and failed to plead facts supporting supervisory liability against Sheriff Neal or deliberate indifference against Malone.

• Harris v. Guerrero, 24-70009, appeal from N.D. Tex.
  • per curiam (Graves, Willett, Ho) (oral argument), habeas corpus
  • Denying certificate of appealability on denial of § 2254 petition.
  • Roderick Napoleon Harris was convicted of capital murder and sentenced to death for killing two people during a 2009 armed robbery. He sought a certificate of appealability after the district court denied his federal habeas petition under 28 U.S.C. § 2254. Harris raised two ineffective-assistance-of-counsel claims: (1) that trial counsel failed to adequately investigate mitigating evidence relating to possible brain damage from fetal alcohol and childhood lead exposure, and (2) that counsel was ineffective for eliciting testimony that Harris wore a stun belt during jury selection.
  • On the mitigation investigation claim, the court noted that trial counsel had consulted a neuropsychologist who found “very little, if anything, in the way of cognitive impairment” and expressed concern that Harris showed signs of malingering; a reasonable jurist could therefore conclude that counsel’s decision not to investigate further was reasonable. On the stun-belt claim, the court found that, given the overwhelming aggravating evidence—including that Harris held a family at gunpoint, killed two people, and committed other violent crimes—a reasonable jurist could conclude the testimony did not prejudice the defense.

• United States v. Guerra, 23-11270, appeal from N.D. Tex.
  • per curiam (Richman, Duncan, Oldham) (no oral argument), habeas corpus
  • Affirming denial of § 2255 petition.
  • Manuel Dimas Guerra appealed the denial of his 28 U.S.C. § 2255 habeas motion, in which he alleged ineffective assistance of counsel related to his convictions for conspiracy to distribute methamphetamine, possession with intent to distribute meth, and possession of a firearm in furtherance of a drug trafficking crime. Guerra claimed counsel was ineffective for (1) failing to move for a Rule 29 judgment of acquittal on the firearm charge, and (2) failing to object to an allegedly misleading aiding-and-abetting jury instruction. He also challenged the denial of leave to file a second amended § 2255 motion raising a Rosemond-based claim.
  • On the Rule 29 claim, the court found sufficient evidence—including proximity of the rifle to drugs and co-defendant Gonzales’s testimony that he distributed meth for Guerra—to sustain the conviction, and that Guerra’s decision to continue trafficking after seeing the rifle satisfied the advance-knowledge element under Rosemond v. United States. On the jury-instruction claim, the court held the instruction correctly stated the law and, in any event, the evidence was sufficient to convict Guerra as a principal. On the motion to amend, the court concluded the proposed Rosemond claim was meritless and therefore futile, because the instruction required the jury to find that Guerra shared in the criminal intent of the principal.

• United States v. Felder, 25-30290, appeal from M.D. La.
  • per curiam (Richman, Duncan, Oldham) (oral argument withdrawn), criminal, jury instructions, sufficiency of evidence
  • Affirming conviction of of attempted persuasion, inducement, enticement, and coercion of a minor.
  • Darryl Felder was convicted after an undercover operation in which a federal agent posed as a 15-year-old girl on an online dating app. Over a week of messaging, Felder sent sexually suggestive material and arranged to meet the purported minor, despite being told repeatedly that she was 15 and acknowledging he could “go to jail.” At trial, Felder claimed he believed the encounter was adult “role-play.”
  • On appeal, Felder argued the district court erred by (1) declining his proposed jury instruction requiring the government to prove he acted “with the intent to transform or overcome the will of a minor,” and (2) presenting insufficient evidence that he knew “Andrea” was a minor. The court held that the district court’s use of the Fifth Circuit’s pattern jury instruction for § 2422(b) provided a “safe harbor” and was a correct statement of law. On sufficiency, because Felder failed to renew his Rule 29 motion, the court applied plain-error review and found the record “replete with” evidence of guilt—including Andrea’s repeated disclosures of her age, Felder’s own statements, photos matching a 15-year-old, and internet searches such as “Walker High School cheerleader Andrea” and “andrea denham springs 15.”

• United States v. Conchas-Mancilla, 25-40424, appeal from S.D. Tex.
  • per curiam (Richman, Duncan, Oldham) (no oral argument), criminal, search and seizure
  • Affirming denial of motion to suppress.
  • Jesus Arturo Conchas-Mancilla appealed the denial of his motion to suppress 17.4 kilograms of cocaine found in his car’s bumper after a canine alert at a Border Patrol checkpoint in Sarita, Texas. He pled guilty to possession with intent to distribute cocaine but preserved his right to appeal the suppression ruling.
  • The central legal issue was whether a drug-detection dog’s “alert” (an instinctive change in body posture), as opposed to a formal “indication” (a trained behavior such as sitting or pointing), can by itself supply probable cause for a vehicle search under the Fourth Amendment. Conchas-Mancilla relied on a footnote in United States v. Keller suggesting an alert alone might not be sufficient without additional evidence. The court applied the totality-of-the-circumstances test from Florida v. Harris, asking whether “all the facts surrounding [the] dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband.” It found that Badi, the dog, was certified by U.S. Customs and Border Protection, had an outstanding track record with no remedial training, and recently won a drug-search competition. Badi gave strong, repeated alerts—pulling on his leash toward the bumper and barking—that pinpointed the hidden cocaine. Under these circumstances, the court held the alerts provided probable cause.