United States v. Fields

Docket: 18-10928
Opinion Date: July 29, 2019
Judge: Higginbotham
Areas of Law: Criminal Law

The Fifth Circuit affirmed defendant's sentence after he pleaded guilty to possessing a firearm as a felon. At sentencing, the district court imposed an upward variance, relying in part on the presentence report's (PSR) description of two instances where defendant was arrested and charged with offenses involving injury to a child. The PSR noted that the charges were ultimately no-billed by Texas grand juries, and defendant argued that the PSR's description of the conduct underpinning his prior arrests was insufficiently reliable for the district court to take the arrests into account at sentencing. The Fifth Circuit held that by itself, the no-bill cannot transform a factual recitation with sufficient indicia of reliability into one that lacks such indicia. In this case, the court held that the district court relied on sufficiently reliable evidence to find that defendant had committed the underlying activities and based the upward variance in part upon those activities. The court need not address whether a grand jury no-bill precludes a sentencing court's ability to find by a preponderance that the defendant committed the particular no-billed offense.

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​US Court of Appeals for the Fifth Circuit Opinions

​United States v. Glenn

Docket: 18-30741
Opinion Date: July 26, 2019
Judge: Leslie H. Southwick
Areas of Law: Criminal Law

The Fifth Circuit affirmed defendant's conviction and sentence for conspiracy, access device fraud, and identity theft for his role in a fraudulent check-cashing scheme. The court declined to address the standing issue, holding that the officer had reasonable suspicion of illegal activity to extend the traffic stop. Furthermore, the district court did not clearly err by finding that defendant voluntarily consented to the search. The court also held that the district court did not clearly err in determining the loss amount; by applying a leadership role sentencing enhancement under USSG 3B1.1(a); and by applying an obstruction of justice sentencing enhancement under USSG 3C1.1.

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US Court of Appeals for the Fifth Circuit Opinions
Keller v. Fleming

Docket: 18-60081
Opinion Date: July 23, 2019
Judge: James L. Dennis
Areas of Law: Civil Rights, Constitutional Law

After decedent was struck and killed by a motor vehicle as he walked along a highway in the dark, plaintiffs filed a 42 U.S.C. 1983 suit against the county, the city, and law enforcement officers, alleging state law claims and constitutional claims. The district court granted summary judgment to the city and the officers, but denied summary judgment to the county and Deputy Fleming. Deputy Fleming appealed. The Eighth Circuit affirmed the district court's judgment as to the Fourth Amendment claim, holding that Deputy Fleming's seizure, detention, and transporting of the decedent at the county line for alleged vagrant-ouster purposes violated the decedent's clearly established Fourth Amendment rights. The court reversed as to the Fourteenth Amendment claim, holding that plaintiffs have not demonstrated a clearly established substantive due process right on the facts they alleged. Therefore, the court rendered judgment that Deputy Fleming was entitled to qualified immunity on the Fourteenth Amendment claim.

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Louisiana seeks input on civil rights trail sites


​www.nola.com/news/article_4acac21e-ac81-11e9-8cdf-c37bf4128b2a.html

US Court of Appeals for the Fifth Circuit Opinions
Crutsinger v. Davis

Docket: 18-70027
Opinion Date: July 19, 2019
Judge: Per Curiam
Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Fifth Circuit denied petitioner's motion for a stay of execution, holding that he failed to demonstrate that the circumstances justify the exercise of the court's equitable discretion. The court held that petitioner was unlikely to succeed on the merits of his claim that this case should proceed in federal court without the pressures of a state execution setting. Even even assuming arguendo he could establish a likelihood of success, the other factors also weigh in favor of the state and against a stay. The court explained that, at this point, a denial of his stay motion would not prevent him from fully and fairly litigating the merits of his Rule 60(b)(6) motion before the district court.

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​Louisiana 'weeks’ away from medical marijuana rollout

www.wafb.com/2019/07/19/louisiana-weeks-away-medical-marijuana-rollout/

US Court of Appeals for the Fifth Circuit Opinions
Mason v. Faul

Docket: 18-30362
Opinion Date: July 17, 2019
Judge: Per Curiam
Areas of Law: Criminal Law

On remand, the case was tried before a jury which determined that defendant had used unconstitutionally excessive force against Quamaine Mason but was nevertheless entitled to qualified immunity. The Fifth Circuit affirmed and held that, although the parties might better have relied in their briefs on Supreme Court precedent from the ensuing three decades following Young v. City of Killeen, 775 F.2d 1349 (5th Cir. 1985), the trial court's reliance on that case as a general matter was not misplaced. The court also held that there was no error by submitting to the jury two jury interrogatories, one on unconstitutional excessive force and one on qualified immunity; the verdict was not fatally inconsistent; and, following a properly conducted trial, the court was required to sustain the jury's verdict on the fact issues.

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Louisiana improving how it handles eyewitness testimony, Innocence Project New Orleans leader says

neworleanscitybusiness.com/blog/2019/07/16/louisiana-improving-how-it-handles-eyewitness-testimony-innocence-project-new-orleans-leader-says/

US Court of Appeals for the Fifth Circuit Opinions
United States v. Butt

Docket: 18-20131
Opinion Date: July 15, 2019
Judge: Jerry E. Smith
Areas of Law: Criminal Law, Real Estate & Property Law

Appellants, pro se, asserted interests in a convicted criminal defendant's property that was subject to criminal forfeiture and criminal restitution. The district court denied their motions for ancillary hearings and return of property. The Fifth Circuit applied the standard of review under Federal Rule of Civil Procedure 12 to the pleading-stage dismissal of a petition for an ancillary proceeding; held that appellants' appeals were timely because the deadline for a civil notice of appeal applied; held that Appellant Huma's petition for ancillary hearing did not state a claim under 21 U.S.C. 853(n), where she has not demonstrated the existence of the necessary written security agreement to establish her as a secured creditor with a lien on the cash or devices, and she cannot demonstrate that she is a bona fide purchaser for value of that property; and held that Appellant Salahuddin presented no persuasive allegation that he has a priority claim to the cash senior to the restitution lien of the United States, but has adequately alleged a secured interest in the devices at issue. Therefore, the court vacated in part, remanded in part, and otherwise affirmed the judgment.

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US Court of Appeals for the Fifth Circuit Opinions​
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United States v. Daniels

Docket: 18-30791
Opinion Date: July 10, 2019
Judge: Willett
Areas of Law: Criminal Law

The Fifth Circuit affirmed defendant's convictions for distributing crack cocaine, aiding and abetting possession with intent to distribute crack cocaine, and conspiring to distribute powder and crack cocaine. The court held that the district court did not err in denying defendant's motion to suppress where exigent circumstances existed justifying the warrantless search, and the officers did not create the exigency. In this case, after officers knocked on defendant's motel room, they heard running throughout the room and the sound of a toilet flushing, which could reasonably suggest that the room's occupants were attempting to destroy evidence. The court also held that the district court did not commit harmful error by not requiring an adverse witness to testify, because the Sixth Amendment did not require the witness to testify. Finally, the court held that the evidence was sufficient to convict defendant, and rejected defendant's remaining contentions.

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US Court of Appeals for the Fifth Circuit Opinions
City of Hearne v. Johnson

Docket: 17-50970
Opinion Date: July 8, 2019
Judge: Leslie H. Southwick
Areas of Law: Civil Rights, Constitutional Law

Defendant-cross claimant alleged that the city attorney violated his First Amendment right to petition for redress of grievances as well as his Fourteenth Amendment right to equal protection. The Fifth Circuit declined to reach the merits of the city attorney's qualified immunity defense to these arguments because defendant-cross claimant lacked standing to assert either. In this case, defendant-cross claimant's procedural injury did not impact any concrete interest and thus he lacked standing to claim that the city attorney violated his First Amendment right to petition. Furthermore, defendant-claimant did not encounter any barrier erected by the city attorney in the processing of the petition, and thus did not have standing to bring his equal protection claim.

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Need a ride? Tomorrow, Uber will officially be available in Houma/Thibodaux

​www.houmatimes.com/news/need-a-ride-tomorrow-uber-will-officially-be-available-in/article_5b334190-9cfe-11e9-bccc-bf152815ec4a.html

US Court of Appeals for the Fifth Circuit Opinions
Crutsinger v. Davis

Docket: 18-70027
Opinion Date: July 3, 2019
Judge: Priscilla R. Owen
Areas of Law: Criminal Law

Petitioner appealed the district court's order transferring his motion for relief from judgment under Federal Rule of Civil Procedure 60(b)(6) to this court. The Fifth Circuit held that the motion was not a successive habeas petition and therefore vacated the order of transfer. However, based on circuit precedent binding on this panel, the court held that it lacked jurisdiction to treat the transfer order and defendant's requests for relief in this court as a request for a certificate of appealability. Therefore, the court remanded to the district court for further proceedings.

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Nicholls, LSU Health New Orleans partner to offer Culinary Medicine Course


​www.houmatimes.com/news/nicholls-lsu-health-new-orleans-partner-to-offer-culinary-medicine/article_9db993ce-9e17-11e9-b6cd-9f0064b1615f.html

United States v. Jones

Dockets: 18-50086, 18-50088
Opinion Date: July 2, 2019
Judge: Stephen Andrew Higginson
Areas of Law: Criminal Law

Upon sua sponte panel rehearing, the Fifth Circuit withdrew its prior opinion and substituted the following opinion. The court vacated defendant's convictions for possessing and conspiring to possess with the intent to distribute methamphetamine, possessing a firearm as a convicted felon, and possessing a firearm in furtherance of a drug trafficking crime. The court held that defendant's rights under the Confrontation Clause were violated when a law enforcement officer testified that he knew defendant had received a large amount of methamphetamine because of what the officer was told by a confidential informant. In this case, the error was not invited by the defense and was not harmless. The court also vacated the related revocation of defendant's supervised release and remanded for further proceedings.

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US Court of Appeals for the Fifth Circuit Opinions
United States v. Fulton

Docket: 17-41251
Opinion Date: June 27, 2019
Judge: Leslie H. Southwick
Areas of Law: Criminal Law

The Fifth Circuit denied a petition for rehearing, withdrew its prior opinion, and substituted the following opinion. The court affirmed defendant's convictions for four counts of sex trafficking and one count of conspiracy. The court held that the seizure of the cellphone was "close enough to the line of validity" to permit the officer to prepare the second warrant that led to the search of the cellphone; the district court did not violate defendant's Confrontation Clause rights by prohibiting defendant from questioning one of the minor victims about a purported aggravated assault charge; even if the special findings made by the jury were supported by insufficient evidence, defendant's convictions would be unaffected; and the court refused to vacate his convictions based on a grand jury clause violation because there was substantial evidence against him.

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