Take the Fifth

Unpublished decisions

• United States v. Lester, 25-11138, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Hernandez, 25-50412, appeal from W.D. Tex.
  • per curiam (Davis, Jones, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• Bishop v. Bennett, 25-60494, appeal from S.D. Miss.
  • per curiam (Jones, Richman, Ramirez) (no oral argument), prisoner suit, Bivens claim
  • Dismissing as frivolous appeal from dismissal of Bivens claim.

• United States v. Orton, 25-10638, appeal from N.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, sufficiency of evidence, jury instructions
  • Affirming conviction of production of child pornography.
  • George Kenneth Orton, Jr. raised three challenges: (1) that the evidence was insufficient to prove the images were produced using materials that moved in interstate or foreign commerce; (2) that the district court erred by giving the pattern jury instruction on “affecting commerce”; and (3) that § 2251(a) is facially and as-applied unconstitutional.
  • The court rejected all three arguments. On sufficiency, viewing the evidence and all reasonable inferences in the light most favorable to the verdict, a rational jury could find the interstate-commerce element beyond a reasonable doubt. On jury instructions, Orton failed to show an abuse of discretion because the district court followed legally correct pattern instructions that tracked the statute and superseding indictment, and any error was harmless beyond a reasonable doubt. On constitutionality, the arguments were foreclosed by binding circuit precedent in United States v. King, United States v. Bailey, and United States v. Dickson.

• United States v. Swift, 25-50222, appeal from W.D. Tex.
  • per curiam (King, Haynes, Ho) (no oral argument), criminal, search and seizure
  • Affirming conviction of possessing visual depictions of sexual activities by minors.
  • Trevor Swift was convicted of possessing visual depictions of sexual activities by minors. Evidence was discovered on a microSD card found in Swift’s office desk by employees of the Belton Independent School District (BISD); a Temple Police detective then obtained a search warrant and conducted his own search of the card. Swift argued that BISD’s initial warrantless search violated the Fourth Amendment, tainting the subsequent warrant-based search and his related confession.
  • The Fifth Circuit applied the good-faith exception’s “close enough” doctrine from United States v. Massi. The sole question was whether BISD’s prior conduct was “close enough to the line of constitutional validity” that an objectively reasonable officer would believe the warrant affidavit information was untainted. The court concluded that it would not be objectively unreasonable for the detective to believe BISD’s warrantless search was constitutional, because the record was unclear as to whether Swift owned or had a reasonable expectation of privacy in the microSD card. Because there was a reasonable view of the evidence supporting the detective’s good-faith reliance on the warrant, the judgment was affirmed.