United States Court of Appeals for the Fifth Circuit

“ And if, as amicus argues, that construal rests on an underlying merits decision—that the INA precludes any equitable tolling—then the Court of Appeals has effectively insulated a circuit split from our review. Putting the Fifth Circuit to the side, all appellate courts to have addressed the matter have held that the Board may sometimes equitably toll the time limit for an alien's motion to reopen. ”

“ Two days earlier, however, in petitioner's case a different panel of the same court had given a different answer to that question. Petitioner's panel disposed of his case pursuant to Fifth Circuit Rule 47.5, which permits the Court of Appeals to leave unpublished those "opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law." There is thus a conflict within the Fifth Circuit on both the answer and the importance of the question petitioner presents to us. ”

“ Based on our reading of Kastigar and Liddy we are constrained to conclude that the Government's ripeness argument must prevail. The Kastigar - style hearing to which appellants are entitled in any further proceedings is a safeguard against violation of their Fifth Amendment right. We cannot extract from the authorities before us a conclusion that appellants are entitled to more. ”

“ Petitioner Ruben Ovalles asserts on appeal that the Board of Immigration Appeals (the “Board”) erroneously failed to apply equitable tolling to his motion to reopen in light of Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016) . After considering the record, we deny Ovalles’s petition for review. I. BACKGROUND This case comes back to the Fifth Circuit upon remand from the Supreme Court. See Ovalles v. Sessions, 741 F. App’x 259, 261 (5th Cir. 2018) , vacated and remanded 140 S. Ct. 1062 (2020) . The facts are undisputed. ”

“ Reed contends that his claim did not accrue until the Texas Court of Criminal Appeals (CCA) denied his petition for rehearing on October 4, 2017, and thus refused to retract the interpretation of Article 64 that the court had unanimously adopted on April 12, 2017. Goertz, on the other hand, argues that Reed’s claim accrued no later than the date of the CCA’s April 12 decision, and because that date preceded the federal lawsuit by more than two years, Goertz maintains that we should affirm the Fifth Circuit’s decision that Reed’s complaint was filed too late. ”

“ We have the benefit of the briefing before the district court and its 13-page opinion styled Order of Dismissal, issued January 1, 2021. That order adopts the position of the Department of Justice, finding that the district court lacks jurisdiction because no plaintiff has the standing demanded by Article III. We need say no more, and we affirm the judgment essentially for the reasons stated by the district court. We express no view on the underlying merits or on what putative party, if any, might have standing. The motion to expedite is dismissed as moot. ”

“ To hold, as the majority opinion does, that the district court plainly erred by (1) failing to extrapolate this questionable result from Yates and Griffin, and (2) failing to give an unrequested jury instruction on a waivable affirmative defense based on that extrapolation, is to place an extraordinary and inappropriate burden on this circuit's district courts.
DEFENDANTS HAVE NOT MET THEIR BURDEN OF SHOWING PREJUDICE Under Rule 52 (b) , an appellate court may correct plain error only if that error "affects substantial rights." ”

“ Under section 144, the judge must determine the legal sufficiency of the affidavit required by that section accepting as true the facts stated with particularity therein. If those facts demonstrate bias, the judge must recuse himself. Section 455, since it imposes a duty directly upon the judge to evaluate his own conduct, requires no affidavit, and as noted supra, appellants did not file one in the district court. Their motion was accompanied by a memorandum of law, which contained allegations of fact that were verified by one of the defense counsel. ”

“ United States v. Milton, 805 F. App’x 280, 281 (5th Cir. 2020) (per curiam) (citing Schurmann v. United States, 658 F.2d 389, 391 (5th Cir. Unit A Oct. 1981) ) . The record makes certain that the written judgment reflects the district court’s intent. ”

“ It is not the function of appellate courts to review tentative decisions of trial courts. The Circuit Court of Appeals had no jurisdiction to review the denial of the motion for a new trial unless the denial was 'final.' Judicial Code, § 128 (a) , 28 U.S.C. § 225 (a) , 28 U.S.C.A. § 225 (a) . Question of finality would be raised if the trial court, while formally denying the motion for new trial on the record, reserves the right to change its mind after the opinion of an appellate court has been elicited. ”

“ Defendants assert the Seventh Amendment provides the right to a jury because Plaintiff's complaint sought money damages.
Defendants would have been entitled to a jury at a trial on the merits of Plaintiff's legal claims. But the set-off hearing was not a trial on the merits of these claims. Instead the district court held the hearing following its entry of default for Defendants' willful discovery violations. See Fed.R.Civ.P. 37 (b) (2) . Defendants do not have a constitutional right to a jury trial following entry of default. ”

“ Because of the shortcomings inherent in examining a cold appellate record without the benefit of the dramatic insights gained from watching the trial, we review the evidence and all reasonable inferences in the light most favorable to the prosecution and to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ”

“ Furthermore, at the time of the entry of the District Court judgment, there was no provision for review of orders sustaining demurrers upon grounds other than those involving the construction of the basic statute.
The Criminal Appeals Act, [6] under which the government brought these cases here, now contains a provision for a remand to the circuit court of appeals if review by this Court on direct appeal is found to be unauthorized. The government does not differ with appellees' specific statement that the new provision is inapplicable to this appeal. We do not think that it is applicable. ”

“ Before us now are the consolidated appeals from the orders entered in the district *302 **408 court. We do not understand either the Church or the individual defendants seriously to contest the "unsealing" of documents which are part of the stipulated record or which were used by defendants in the examination of witnesses at the suppression hearing or which were referred to by the trial judge in his opinion on the motion to suppress. [FN21] At issue, then, is the substantive and procedural propriety of the judge's orders with respect to the balance of the documents unsealed. ”

“ The Federal Circuit, in analyzing the DMCA’s anti-circumvention provision, concluded that it “convey [s] no additional property rights in and of themselves; [it] simply provide [s] property owners with new ways to secure their property.” ”

“ The remaining counts in the indictment shall not be dismissed pending disposition of any appeals brought by the defendants. In the event that a conviction of a particular defendant is reversed or vacated as a result of judicial review, the government retains the option of proceeding on any of the remaining counts as to that defendant. In the event that the conviction of any defendant is not reversed, all remaining counts as to that defendant shall be dismissed with prejudice upon entry of the final judgment of conviction. ”

“ Although the dismissal in Link was categorized as being for "failure to prosecute," the substance of the district court's ruling was essentially the same as that of the district court in this case. Justice Harlan wrote:
There is certainly no merit to the contention that dismissal of petitioner's claim because of his counsel's unexcused conduct imposes an unjust penalty on the client. ”

“ If he retains the case and determines it, an appeal, it is admitted, lies; if he transfers the case, and the decree or judgment is in the Circuit, it must be denied. We think Congress could hardly have intended this result. It places the right of an appeal not on the judgment of the circuit judge who rendered it, but in the discretion of the judge of the District Court.
It is urged that the proceedings under the act of 1851, concerning California land titles, are special, and are not to be regarded as cases either in law or equity. ”

“ Because we remained concerned, even after lifting the abatement of this appeal, that the claims certified under Rule 54 (b) in the district court's August 23, 2012, order were not separable from Plaintiffs' remaining unadjudicated claims, we issued an order directing Appellants to "file in this court a copy of an order of the district court dismissing the remaining claims with prejudice" or face dismissal of the appeal.
"When an action presents more than one claim for relief . ”

“ Although en banc review is “not favored,” Fed. R. App. P. 35 (a) , and although all three panel members agreed on the result in this case—i.e., that two subpoenaed reporters can be compelled to give grand jury testimony—petitioners seek reconsideration of three issues: their assertion of a common law privilege under Federal Rule of Evidence 501; their claim to First Amendment protection; and their due process challenge to the district court’s use of ex parte evidence. ”

“ Surely if a criminal defendant may be convicted because he did not have the presence of mind to repudiate his attorney's conduct in the course of a trial, a civil plaintiff may be deprived of his claim if he failed to see to it that his lawyer acted with dispatch in the prosecution of his lawsuit. And if an attorney's conduct falls substantially below what is reasonable under the circumstances, the client’s remedy is against the attorney in a suit for malpractice. ”

“ Dismissal of a properly pled federal claim does not retroactively deprive the court of subject matter jurisdiction. See Bell v. Hood, 327 U.S. 678, 682 (1946) (federal jurisdiction is not defeated by the possibility that complaint fails to state a cause of action on which a plaintiff could actually recover) . Nor does the court's dismissal of all substantive claims deprive the court of authority to enforce a previously entered sanction. A district court retains jurisdiction to impose and enforce sanctions until the court enters a final judgment. [10] See Fed. ”

“ Although defendants moved to dismiss the indictment on the ground that the statute of limitations had expired, neither defendant proposed a jury instruction regard- ing the statute of limitations, nor objected to the absence of such an instruction. The defendants therefore failed to object properly to the district court's jury instructions.
"Where a defendant fails properly to object to a jury instruction or to an omission from a jury instruction, we review for plain error." ”

“ No motions for reconsideration nor appeals have been filed subsequent to the November 5th order of the district court. Both appellants and appellees have filed memoranda with this court responsive to the earlier supplemental opinion of the original trial judge, appellants urging that the documents continue to be kept under seal, and appellees urging that the supplemental record provides a sufficient rationale for their unsealing. ”

“ PER CURIAM Appellants, subpoenaed by the prosecution to testify in a criminal trial currently in progress in the District Court and granted use immunity for that purpose, refused to testify and were held by the District Court to be in civil contempt. They appeal that judgment and challenge its validity on a number of grounds. ”

“ Similarly, a federal court ordinarily does not abuse its discretion when federal civil claims drop from a case after the start of trial and the court proceeds with the pendent state claims. Gibbs, 383 U.S. at 726-27, 86 S.Ct. at 1139-40.↑ While a witness may challenge a court's authority to compel his testimony and may assert testimonial privileges, we know of no case permitting a witness, on appeal from a contempt citation, to attack mere errors by the trial court. This is so even if, but for the trial court's error, the witness would not have been called to testify. ”

“ Imagine a computer costs $1,000 if purchased from an online retailer, but a government IT worker can purchase the same computer for $500 using her government discount. If someone bribes the worker with $100 in order to acquire the computer (the “thing of value”) at the discounted price, the open market value of the computer is still $1,000, even though the bribe amount is $100. ”