Tag Archives: 5th Circuit

Nguhlefeh Njilefac v. Garland, No. 20-60520, 5th Circuit (Mar. 24, 2021)

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Nguhlefeh Njilefac v. Garland is an interesting case if you ever do any work with unsworn declarations.

An important question in that case was whether Nguhlefeh Njilefac’s counsel received certain documents in the mail. The Fifth Circuit recognizes a presumption of receipt when documents are properly mailed. Nunes v. Sessions, 882 F.3d 499, 506 (5th Cir. 2018). Here, Nguhlefeh Njilefac tried to overcome the presumption with two declarations. The first declaration was from his counsel, who declared that he had never received the briefing schedule. The second declaration was from his counsel’s officemate, who declared “to my knowledge,” neither he nor his staff had seen the briefing schedule. The Fifth Circuit agreed with the BIA that the declarations did not overcome the presumption.

First, mere denial of receipt “is typically insufficient to cast doubt on a delivery.” Slip Op. at 5 (citing In re Eagle Bus Mfg., Inc., 62 F.3d 730, 735 (5th Cir. 1995); Mauricio-Benitez v. Sessions, 908 F.3d 144, 150 (5th Cir. 2018); Nunes v. Sessions, 882 F.3d 499, 507 (5th Cir. 2018).

Second, while both declarations contained “under penalty of perjury” language, neither declaration contained language indicating “that the foregoing is true and correct.” See 28 U.S.C. § 1746 (setting forth the formal requirements for an acceptable unsworn declaration). That defect alone may or may not eliminate the evidentiary value of the declaration. Slip Op. at 5 n.4 (comparing Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988) (concluding that a declaration that did not include either phrase did not comply with § 1746 because it “allow[ed] the affiant to circumvent the penalties for perjury”); with Ion v. Chevron USA, Inc., 731 F.3d 379, 382 n.2 (5th Cir. 2013) (considering a qualifying declaration as equivalent to a sworn affidavit in determining whether a genuine issue of material fact existed for the purposes of a motion for summary judgment).).

Third, making a declaration “to the best of my knowledge” effectively voids the evidentiary value of the declaration. Slip Op. at 3 n.1 (citing Henderson v. Dep’t of Pub. Safety & Corr., 901 F.2d 1288, 1296 (5th Cir. 1990) (concluding that an affidavit made “to the best of [declarant’s] knowledge and belief” was not based on personal knowledge and was therefore “legally insufficient” to prove the truth of its contents); Lopez-Carrasquillo v. Rubianes, 230 F.3d 409, 414 (1st Cir. 2000) (same); Garmon v. Lumpkin Cnty., 878 F.2d 1406, 1408–09 (11th Cir. 1989) (same); see also Am.’s Best Inns, Inc. v. Best Inns of Abilene, L.P., 980 F.2d 1072, 1074 (7th Cir. 1992) (per curiam) (“[O]nly [an] affidavit made on personal knowledge has any value (‘to the best of my knowledge and belief’ is insufficient).”).

Bankruptcy, Filing Fees, and the Constitution

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The case of this week is In re Buffets LLC, No. 19-50765 (5th Cir. Nov. 3, 2020) (slip op.; Google Scholar).

When I was in college, doing moot court, I dreamed of one day doing “constitutional law.” In my head, constitutional law was this amazing and heady thing, dealing with rights to esoteric things like Life and Liberty and Property and Due Process. I imagined myself sitting in an appellate courtroom, with oak paneling , hardwood floors, and judges in wigs, waxing philosophical: “Mm, yes, your honor, but exactly how much ‘process’ is due?” When I got into the real world of practice, I learned that most of the practice of law is people on one side trying to find some excuse not to pay the people on the other side. Questions of how much process is due rarely come up. But they do, occasionally, and almost always because the side that doesn’t want to pay has a creative lawyer.

Buffets LLC operates a chain of buffet restaurants, including Ryan’s Family Steakhouse. It filed for bankruptcy under Chapter 11 in 2016, confirmed a plan in 2017, and was still making disbursements under that plan in 2018, when Congress amended 28 U.S.C. § 1930(a)(6).

Section 1930 governs the fees payable in bankruptcy cases, and paragraphs (a)(6) and (7) provide for quarterly fees payable in Chapter 11 cases. Subsection (a)(6) says that in most of the country (in “UST courts”) a “quarterly fee shall be paid to the United States trustee” based on the amount of disbursements by the debtor under the plan in that quarter. Subsection (a)(7) says that, in the rest of the country (in “BA courts”), the Judicial Conference “may require the debtor . . . to pay fees equal to those imposed by paragraph (6) of this subsection.” There  are two paragraphs because the country operates two systems for administering bankruptcy cases: the UST system and the BA system. U.S. trustees and bankruptcy administrators do essentially the same thing: they both monitor bankruptcy cases to make sure fees are paid, schedules and reports are filed, bank accounts are opened properly, etc. But U.S. trustees are funded by filing fees while bankruptcy administrators are funded out of the general budget of the judiciary. So: Congress controls quarterly fees in UST courts while the judiciary, through the Judicial Conference, controls quarterly fees in BA courts.

In 2018, to address budgetary problems in the UST system, Congress raised the cap on quarterly fees under section 1930(a)(6) from $30,000 to $250,000. The change was effective on a certain date and applied to all Chapter 11 cases pending on that date. In 2019, the Judicial Conference raised the quarterly fees under section 1930(a)(7) to match Congress’s raise, but limited the effect of the change to new cases filed on or after that date.

Now, like I said, Buffets LLC was still making disbursements under its Chapter 11 plan when the amendment came into effect in 2018. Because Buffets LLC had filed in the Western District of Texas (a UST court), its quarterly fee increased from $30,000 to $250,000. As you might expect, Buffets LLC resisted the fee hike. It raised number of factual and legal challenges—including that the fees were unconstitutional because they violate the Bankruptcy Clause of the Constitution.

Wait. What? Filing fees are unconstitutional? And there’s a bankruptcy clause in the Constitution? Yep:

The Congress shall have Power . . . To establish . . . uniform Laws on the subject of Bankruptcies throughout the United States[.]

U.S. Const. art. I, § 8, cl. 4. “The Bankruptcy Clause ‘might win’ a ‘contest for least-studied part’ of Article I’s congressional powers.” Slip Op. at 14. It “received ‘meager’ attention” at the Constitutional Convention after Charles Pinckney proposed it alongside the Full Faith and Credit Clause. “Roger Sherman raised the only doubt about the Bankruptcy Clause, expressing concern because ‘in England, some bankrupts were sentenced to death’.” Slip Op. at 14-15 n.8. The Bankruptcy Clause is mentioned only once in the Federalist Papers: “The power of establishing uniform laws of bankruptcy is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie or be removed into different States, that the expediency of it seems not likely to be drawn into question.” The Federalist No. 42. So if you’ve never heard of it before, you’re in good company.

The lawyers for Buffets LLC, though, had heard of it. They argued that a scheme under which one set of fees was payable in one part of the country and a different set of fees was payable in a different part is unconstitutional because it is not “uniform . . . throughout the United States.” [n.1]

The Fifth Circuit was not persuaded. The Bankruptcy Clause “forbids only two things . . . arbitrary regional differences in the provisions of the bankruptcy code [and] private bankruptcy bills.” In re Reese, 91 F.3d 37, 39 (7th Cir. 1996). [n.2] The fee statute is clearly not a private bankruptcy bill, but is it an arbitrary regional difference? Not according to the majority: regional difference yes, but it is justified by the different funding mechanisms for UST courts and BA courts and so is not “arbitrary.” After all, Congress made two systems for a reason, so Congress can fund the two systems however best it makes sense to fund them. If you’re scratching your head, again, you’re not alone. Doesn’t that answer just beg the question about the uniformity—and therefore constitutionality—of the dual UST-BA system? Maybe, but Buffets LLC “do not ask us to ‘hold that the permanent division of the country into UST districts and BA districts violates the Bankruptcy Clause.” Slip Op. at 19. Constitutional question averted.

But maybe not forever. The dissent relied heavily on St. Angelo v. Victoria Farms, Inc., in which the Ninth Circuit held that the dual UST-BA system is dis-uniform and therefore unconstitutional. 38 F.3d 1525 (9th Cir. 1994), amended by 46 F.3d 969 (9th Cir. 1995). Now that we have sophisticated lawyers fighting over hundreds of thousands of dollars, the issue may come to a head sooner rather than later.

Notes:

  1. In fact, because of the geography of UST courts and BA courts, Buffets LLC could have argued that there is one part of the United States where the fees are not uniform even within city limits. The federal courthouse in Texarkana sits on the state line. The bankruptcy courts on one side, in the Eastern District of Texas, are UST courts. The bankruptcy courts on the other side, in the Western District of Arkansas, are BA courts.
  2. The Fifth Circuit had to cite the Seventh Circuit because Supreme Court case law is not particularly helpful—it only provides that the Bankruptcy Clause is “not an Equal Protection Clause for bankrupts.” Railway Labor Executives Ass’n v. Gibbons, 455 U.S. 457, 470 n.11 (1982). Whatever that means.

Clear and Unequivocal as Mud

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This week’s case is a funny little case from 2018: Wilmington Trust, N.A. v. Rob, 891 F.3d 174 (5th Cir. 2018). Kcevin and Angel Rob took out a home equity loan in July 2007. They stopped paying on the loan in March 2011. Over the next two years, Wilmington Trust [n.1] sent the Robs a series of notices of default, of intent to accelerate, and of acceleration. But, in November 2014, Wilmington Trust sent the Robs a notice of rescission of acceleration. The Robs continued not paying their mortgage, and Wilmington Trust sued for foreclosure in June 2015. The district court entered judgment in favor of Wilmington Trust, but the Fifth Circuit reversed.

Texas courts require clear and unequivocal notice of (1) intent to accelerate and (2) acceleration itself. “Unless a lender provides both forms of notice, it may not foreclose.”  Rob, 891 F.3d at 177. Here, Wilmington Trust may have provided clear and unequivocal notice at some point, but the notice of rescission in November 2014 made all of that very much less clear and unequivocal. Wilmington Trust, therefore, failed to prove that it had provided clear and unequivocal notice and was, accordingly, not entitled to a judgment of foreclosure. Trial court judgment reversed and rendered; game over.

BUT — this case should not be read as saying that Wilmington Trust can never foreclose. Rather, it should be read as saying that Wilmington Trust cannot foreclose yet. If the home equity loan has not yet matured, Wilmington Trust could probably just re-issue the notices of intent to accelerate and of acceleration, then sue for foreclosure. Sometimes you can stick it to the man a couple times, but you can’t stick it to him  forever.

  1. Technically, the notices were sent by one of Wilmington Trust’s predecessors in interest,  but that detail is not particularly important.

The Government’s Right to Flood You Out

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I was always taught to put your best argument first. Otherwise, the people you’re trying to convince might get caught up on something else and never get to it. In judicial opinions, the court is trying to convince the litigants and the public at large that the court made the right decision. They are so busy, however, that you sometimes come across opinions that are organized more like prose transcriptions of the judges’ notes than a piece of argument. The Fifth Circuit’s opinion in Residents Against Flooding v. Reinvestment Zone No. 17, No. 17-20373 (May 22, 2018) (per curiam) is just such an opinion. To be fair, the opinion isn’t signed, so we shouldn’t necessarily expect anything interesting out of it. Still, this post isn’t meant to criticize, but to consider how the argument could have been structured. 

The case arose when some residents in Houston sued their local government for designing and implementing a stormwater drainage system so that excess stormwater was diverted away from commercial areas and into their neighborhoods, causing floods and interfering with their rights and abilities to use their homes. The district court dismissed the claims, and the Fifth Circuit affirmed.

One of the residents’ theories was that the City’s plans violated their substantive due process rights under the 14th Amendment. To win on that claim, the residents would have to show (1) that there was governmental conduct (2) that interfered with a constitutionally protected right and (3) that was not rationally related to a legitimate government interest. The first element was not in dispute. Clearly, designing and implementing a stormwater drainage system is government conduct. But does it implicate a constitutionally protected right?

The residents said they had a constitutionally protected “right to use their homes.” Slip Op. at 4. I have to admit: I find that rhetorically appealing. Of course you have a constitutional right to use your home. What else does the Third Amendment stand for if not that? But the Fifth Circuit was not persuaded. That phrasing “is too broad and unsupported by caselaw.” Slip Op. at 4-5. But the Fifth Circuit didn’t cite any caselaw saying you don’t have a right not to be flooded out by government conduct. Instead, it just labels the caselaw cited by the residents as “inapplicable.” Slip Op. at 5. I dunno. I’m not convinced.

But “Even assuming that the government projects implicated a constitutionally protected right” — which feels like an unrebutted assumption — “these projects were at least debatably rationally related to a legitimate governmental interest” because “the government objectives were to improve its tax base and the general welfare.” Slip Op. at 5-6. Sure, that’s legitimate. But improving the tax base by flooding one property instead of another? The court might as well have cited Kelo v. City of New London, 545 U.S. 469 (2005).  Do you remember that case? In it, the U.S. Supreme Court said that local governments had the right to force private owners to sell their property as part of a “comprehensive redevelopment plan,” even when that plan involves the local government turning around and selling the property to another private owner. It’s one of the most controversial decisions of this century. If this case had come out of the Ninth Circuit, we’d be hearing calls to revive the House Un-American Activities Committee.

OK. So you think people have a constitutional right to use their homes and that local government shouldn’t interfere with that? Too bad. “This case is analogous to York v. City of Cedartown, 648 F.2d 231 (5th Cir. Unit B 1981). In York, “the plaintiffs . . . alleged that the government’s actions with regard to infrastructure and drainage resulted in ‘water and sewage . . . deposited on [the] appellants’ property’ during times of ‘excessive rainfall’, depriving them of their property rights.  We held that the appellants failed to allege facts that rose to the level of a violation of the U.S. Constitution.”  Slip Op. at 6-7.

Wait, what?  There’s a case directly on point?  Why didn’t you lead with that?  I may or may not agree with you that a local government plan that floods my neighborhood doesn’t “involve” my property, and I may or may not agree with you that flooding one local property instead of another is rationally related to increasing the tax base or that increasing the tax base by itself is a legitimate government objective, but we can all agree that stare decisis is extremely important.  It’s what sets the Anglo-American common law system apart from the French and German civil law system used in most of Europe and Latin America.  In America (and the other common law legal systems), we don’t decide cases by resorting to a dictionary.  We decide them by looking to our collective experience in resolving disputes. 

On-point caselaw wins every time. It would have been totally acceptable for the City to argue that the Fifth Circuit had already decided this exact question back in 1981.  It would have been totally acceptable for the Fifth Circuit to cite York with little more explanation than, “the Residents want us to do x, but that is foreclosed by precedent.”  They do it all the time in criminal cases.  It’s interesting that they didn’t do it here.

I know what you’re thinking. The City won, the Supreme Court didn’t grant cert. Who cares? Well, I started to read the case because I was in Houston during Hurricane Harvey, and I remember the “controlled releases.” Thankfully, I was living in an old part of town that wasn’t built in a flood plain. But I know people whose homes were “implicated” in the “controlled releases.” So I was interested to see how the Fifth Circuit dealt with these issues. My initial sense is that the government ought to be liable for that somehow. After all, government action created the risk of flooding and government action literally caused the flooding. Why shouldn’t they be responsible?

And I gotta tell you: baldly stating that “their [the residents’] claimed right to use their homes is too broad and unsupported by caselaw” just doesn’t convince me.

Papering Over the Constitution

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The case of United States v. Lim, 897 F.3d 673 (5th Cir. 2018), is one of those cases that discourages me. It involves dishonesty and duplicity by three different Government actors on three different levels.

Level 1: The Miranda Two-Step

Miranda v. Arizona, 384 U.S. 436 (1966), is the source of the well-known “Miranda Warning”: You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. And so on. The purpose of the Miranda Warning is to inform people that they do not have to answer police questions without an attorney present. But what if people won’t answer questions if there is an attorney present? How can you make sure you catch the bad guys?

One solution is the “Miranda two-step.” It goes like this:

  1. The officer asks questions and gets answers he likes.
  2. The officer gives the Miranda Warning to the individual, telling him that he doesn’t have to answer any questions.
  3. The officer asks the same questions again.
  4. If he gets the same answers, great; if the answers change, the officer says something like: “Wait a minute. Didn’t you just say . . . ?” With any luck, the person will change their answer back to the original answer.

It can be a pretty effective technique for covering up Miranda violations. It’s also pretty slimy.

In this case, ICE was executing a warrant for removal on a guy named Chhay Lim. Mr. Lim had been ordered removed 16 years earlier, but apparently had not been a priority for tracking down. Anyway, ICE knocked on his door at 6 am, asked him to step outside, and arrested him on his front porch. Lim, 897 F.3d at 685. Even though he was clearly under arrest, the ICE officers did not give him the Miranda Warning. In fact, the ICE officer in question “bragged that it was his standard policy not to Mirandize an alien until after it appeared that criminal charges might be filed.” Id. at 690. In other words: this officer doesn’t like to tell people they don’t have to answer incriminating questions until they have already answered some incriminating questions.

Back to the two-step. Since it was 6 am and Lim was still in his underwear, they “offered to allow Lim to return inside to dress,” but “they would have to accompany him inside if he did.” Lim, 897 F.3d at 685. Once inside, they asked him if there were any guns in the house. He told them there was one in the bedroom and one in the laundry room. They escorted him to the bedroom, and he pointed out where the gun was. Step one complete.

Step two: They “secured the gun” and “read [him] his Miranda rights.” Id. at 685. This is a key juncture in the facts of the case. Everything before the warning is “pre-Miranda”; everything after is “post-Miranda.”

Step three: Post-Miranda, they ask him where he got the gun. He said: “From a friend,” but then exercised his right to remain silent. Id. at 685.

At trial, the Government wanted to admit into evidence: (1) Lim’s statements admitting that there were two guns in the house and (2) the guns themselves. Lim objected: the question about whether there were any guns was pre-Miranda, and the guns were only discovered because of the Miranda violation. The trial court overruled his objections. On appeal, the Fifth Circuit agreed with Lim that the pre-Miranda statements and the laundry room gun should have been excluded, but agreed with the trial court that the bedroom gun could be admitted, because it would have been discovered in a proper protective sweep of the bedroom.

Even though the Fifth Circuit got this part of the case right, it’s discouraging that the ICE officers routinely dance the Miranda Two-Step.

Level 2: Crafty Wording in the Factual Basis

After the trial court denied his motion to suppress the statements and the guns, Mr. Lim pled guilty. As part of the guilty plea process, the Government drafted and Mr. Lim executed a “factual basis.” The idea of the factual basis is to make the judge comfortable that this defendant actually did what the Government claims he did.

Here, the Government drafted the factual basis to say the laundry room gun was “in plain view.” Lim, 897 F.3d at 688. If the gun was in plain view, then it was ok for the ICE officers to ask about it without telling Mr. Lim that he didn’t have to answer any questions. But here’s the thing: the officer who found the gun didn’t think it was in plain view. In fact, he testified that it took two tries to find the gun in the laundry room because it was “in a place he did not look initially because it was not somewhere a person could hide.” Lim, 897 F.3d at 688.

The Fifth Circuit did not approve of the Government’s shenanigans: “we will not allow the government to avoid its own evidence and rely on a craftily worded factual basis to justify a potentially unconstitutional search.” Lim, 897 F.3d at 689.

Still, it’s disappointing that a member of the bar who has taken an oath to uphold the Constitution and laws of the United States would stoop to shenanigans like this.

Level 3: The Appeal Waiver

Generally speaking, a defendant who pleads guilty waives the right to appeal any nonjurisdictional defect in the proceedings that occur before the plea is entered. A defendant may plead guilty while still reserving the right to appeal some aspect of the proceedings; that is referred to as a “conditional guilty plea.” Conditional guilty pleas, though, must “be in writing and designate the particular issues that are preserved for appeal; the government must consent to it; and the district court must approve it.” United States v. Olson, 849 F.3d 230, 231 (5th Cir. 2017). But “variances from these technical requirements” can be excused if “the record clearly indicates” that the defendant intended to enter a conditional plea, that he intended to appeal a particular pretrial ruling, and that neither the Government nor the district court objected to the conditional guilty plea. Lim, 897 F.3d at 680-81.

Here, the “written plea agreement does not indicate that the plea was conditional.” Lim, 897 at 680. In other words, Mr. Lim’s conditional guilty plea was not in writing, as required by Olson. So on appeal, the Government’s first argument was that Lim waived his right to appeal.

Only — that’s not the position the Government took in the trial court. According to the trial court “it is my understanding that you [Mr. Lim] and the government have agreed that you will not waive any right to appeal your conviction or your sentence.” The trial court then confirmed with Mr. Lim, Mr. Lim’s counsel, and the Government’s counsel that the court’s understanding was correct. In fact, the prosecutor agreed on the record:

Yes, Your Honor, that is correct. We have stripped out all of the appeal waiver language so he is reserving all of his appellate rights.

Lim, 897 F.3d at 680.

The Fifth Circuit was not amused. After outlining the facts and noting that, “The government weakly contends, however, that Lim did not do enough to preserve his right to appeal the denial of his motion to suppress,” the Fifth Circuit simply concluded: “Lim properly preserved his right to appeal the denial of his motion to suppress.” Lim, 897 F.3d at 681.

Still, it’s disappointing that the Government’s appellate attorney would even make the argument.

Thoughts for the Road

The police and the Government are supposed to be on the side of law and order. In America, that means being on the side of those who keep their promises. But here we have an ICE officer playing games with the constitutionally promised right to remain silent, we have a government trial lawyer trying to paper it over, and we have a government appellate lawyer trying to hide it. We have a right to expect better from our Government.

Pith and Wit and Truth

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Ancient Greek and Roman lawyers recognized that pith and wit could overcome logical rigor in the courtrooms of their day. For example, Socrates was convicted and executed, not because his prosecutors proved that he did what they alleged with irrefutable logic, but because their rhetoric convinced the jury to make one decision instead of another.1 Rather than run from rhetoric in search of truth, ancient lawyers used rhetoric to aid the truth in coming out. Cicero, for example, wrote a few books on the use of rhetoric in courtrooms. Perhaps they understood that rhetoric often beats logic, even in a fair fight.

One reason rhetoric is so powerful is that logic is so dadgum hard. Denying the antecedent has been recognized as a logical fallacy for perhaps 2,300 years. Aristotle gave an example of its twin sister, affirming the consequent, way back in his Sophistical Refutations in the late 4th century B.C.E. I am not aware of a “classic” example of denying the antecedent, but they are easy and fun to come up with. For example:

  1. If it is a basketball, it is round.
  2. A baseball is not a basketball.
  3. Therefore, a baseball is not round.

On the other hand, a piano is not a basketball, and a piano is, in fact, not round. Sticking the piano into the syllogism in the place of the baseball makes it look like the syllogism works:

  1. If it is a basketball, it is round.
  2. A piano is not a basketball.
  3. Therefore, a piano is not round.

And that’s the trouble with logical fallacies: they tell you nothing about the conclusion. They make it neither more likely nor less likely that the conclusion is true.

Still, this particular fallacy has some staying power. Perhaps that is because its other two sisters—affirming the antecedent and denying the consequent—are logically valid. If the thing in my hands is a basketball, it must be round. Because the piano in my room is not round, it cannot be a basketball.

Denying the antecedent is a common mistake. People make it all the time. Even federal judges in published opinions affecting the lives and livelihoods of hundreds of people. In fact, I found an example in a recent Fifth Circuit opinion, DISH Network Corp. v. NLRB. The facts are remarkably complicated, but the bedrock syllogism on which the decision is built goes something like this:

  1. If the attrition rate at the union shops was 116 percent, then the offer to phase out QPC was substantial evidence that the parties were not at an impasse.
  2. The attrition rate at the union shops was not 116 percent.2
  3. Therefore, the offer to phase out QPC was not substantial evidence that the parties were not at an impasse.

(Slip Op. at 8–9.) Or, to put it in the same terms as the first syllogism:

  1. Definitions
    1. Let the “basketball” signify that the attrition rate at union shops is 116 percent.
    2. Let the “baseball” signify that the attrition rate at union shops is not 116 percent.
    3. Let “being round” signify that there is substantial evidence that the parties were not at an impasse.
  2. If it is a basketball, it is round.
  3. A baseball is not a basketball.
  4. Therefore, a baseball is not round.

It may or may not be actually true that the parties were at an impasse. Perhaps what I have called a baseball is in fact a piano. That’s the problem with invalid syllogisms—they look smart but they tell you nothing.

Rhetoric, on the other hand, particularly pith and wit, can be very satisfying to read. And the court gets high marks on for that. The opinion is full of quotable soundbite phrases like:

  • “The Board’s no-impasse finding flunks these standards.” (Slip Op. at 7.)
  • “The ALJ erred, and the Board doubled down. Two wrongs can’t make the Board right.” (Slip Op. at 9.)
  • “We recognize that the NLRB, in particular, struggles with this rule.” (Slip Op. at 14.)

Pith and wit are more exciting to read and, on some level, convincing. But they should not be confused for logical rigor.

Footnotes:

n.1: Despite his (disingenuous?) thrashing of rhetoric as an empty art in Plato’s Gorgias, Socrates really could have used it at his trial. His trademark socratic method may be a great educational tool, but it’s pretty terrible at convincing anybody to do anything.

n.2: The opinion never states what the attrition rate at the union shops actually was, and this is a second problem. Although the court refers to the attrition rate at union shops as the “relevant data” and assures us (the people it’s trying to convince) that the “relevant data . . . supported DISH,” the court never discloses the relevant data. One footnote concedes that the “correct attrition rates,” whatever they may have been, were “described . . . as ‘high’.” (Slip Op. at 9 n.3.) Another paragraph refers to “an attrition rate of 30.5%,” but the court dismissed that as “simply not what the Board or the ALJ said.” (Slip Op. at 14–15.) So it’s not clear what the actual attrition rate was.

Perhaps the court avoided showing the “correct attrition rates” because it wanted to avoid the paradox of Zeno’s grain of millet. The court seems to agree that an attrition rate of 116 percent would be high enough. Its refusal to confront the 30.5-percent rate suggests that 30.5 percent may be high enough, but it’s not conclusive. What about the 86 percent that a prior court in the same case found at one of the union shops? Kinard v. DISH Network, 228 F. Supp. 3d 771, 782 (N.D. Tex. 2017). The truth is: we don’t know what attrition rate would have been high enough for the court to perceive the union’s offer to phase out QPC as substantial evidence that the parties were not at an impasse and further negotiations might be fruitful.

Answering and Not Answering Questions That Aren’t Asked

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United States v. Staggers is a case out of New Orleans involving three defendants who were jointly indicted and tried on charges relating to a conspiracy to distribute heroin. One defendant (Morrison) was acquitted of the conspiracy charges, but found guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). His Guidelines range was 235 to 293 months in prison (or about 20 to 24 years), but the district court varied downward to the mandatory minimum of 15 years. On appeal, Morrison made two arguments for vacating his conviction:

  1. That the Government was required to but failed to prove that he knew he was a felon, in violation of Rehaif v. United States, 139 S.Ct. 2191 (2019);
  2. That the evidence supporting his conviction was obtained in violation of the Fourth Amendment because the police did not properly obtain consent to search his home.

The Fifth Circuit rejected his first argument, but accepted his second, vacating the conviction and remanding for a determination of whether the police had consent to enter his home without a warrant.

Rehaif and Knowledge of Felon Status

Section 922 defines a crime: “It shall be unlawful for any person . . . who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess in or affecting commerce, any firearm or ammunition . . . .” 28 U.S.C. § 922(g)(1). This is often short-handed to being a “felon in possession.” Section 924 provides for punishment: “Whoever knowingly violates subsection . . . (g) . . . of section 922 shall be fined as provided in this title, imprisoned not more than 10 years, or both.” 28 U.S.C. § 924(a)(2). But if that person “has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another,” the ten-year minimum is enlarged to fifteen years. 28 U.S.C. § 924(e)(1).

In Rehaif, the Supreme Court broke down the crime defined by sections 922(g) and 924(a)(2) and (e)(1) as having four elements:

  1. a status element (here, having been convicted of a crime punishable by imprisonment for a term exceeding one year),
  2. a possession element,
  3. a jurisdictional element (the part about “in or affecting commerce”), and
  4. a firearm element.

The Court then held that to prove that a defendant “knowingly violate[d]” section 922(g), and therefore is subject to punishment under section 924, the Government must prove that the defendant had knowledge of the first, second, and fourth elements. Rehaif, 139 S.Ct. at 2195-96.

In Morrison’s case, however, the jury was only asked whether Morrison had knowledge of the second and fourth elements — not whether he knew he had the relevant status. (This may sound like a dumb thing to ask a jury, but the relevant status is being convicted of a crime punishable by more than a year in prison, not whether he was actually punished by more than a year in prison. Someone sentenced to less than a year or even right at a year in prison might not know he could have been sentenced longer.)

That should be the end of the case, right? The Government failed to prove its case beyond a reasonable doubt on all the required elements. Not quite. Morrison didn’t raise the issue, so the Govenment’s failure to carry its burden is reviewed for “plain error.”

To obtain reversal under the plain error standard, an appellant must show three elements and convince the court of appeals to exercise its discretion to correct the error. Puckett v. United States, 556 U.S. 129, 135 (2009). Here, the Fifth Circuit declined to exercise its discretion for three reasons. First, Morrison never argued that he “actually lacked knowledge of his status as a felon.” Second, the “record before us . . . shows that Morrison must have known that he was a convicted felon.” And third, the panel is “confident” that if the knowledge-of-felon-status element had been in play, “Morrison would have stipulated” to it. In other words, if the jury had been asked to determine whether Morrison knew he had the relevant status, the jury would have said yes. No need to send this case back to the jury to ask a question we all know the answer to.

It seems unfair on some level to put the burden of objecting on Morrison. Rehaif came out after Morrison’s trial but before the appeal was decided. If Rehaif changed the rules, which it seemed to do, how could Morrison know he was supposed to object? On the other hand, if Rehaif did change the rules, how was the Government supposed to know what it had to prove under the new, not-yet-announced rules? It seems to me that the plain error standard is a bit of a compromise between the two positions. It allows the court of appeals to look at the issue in this case, in these circumstances, and decide whether it affected things in a fundamentally unfair way. Sometimes, it operates as a safety valve to let courts address deeply unfair situations. Usually, it lets the the court of appeals shrug and move on.

Consent to be Searched

The Fourth Amendment is pretty clear:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .

U.S. Const. amend. IV.

A search with a valid warrant is reasonable, but searching “a person’s home [without a warrant] is presumptively unreasonable, and it is the government’s burden to bring the search within an exception to the warrant requirement.” United States v. Aguirre, 664 F.3d 606, 610 (5th Cir. 2011). Here, the Government claimed to have consent — that Morrison or somebody with authority consented to the search of his home. To show consent, the Government had to prove (1) that it received consent, (2) that was voluntarily given, (3) by someone with actual or apparent authority to consent, and (4) that the search did not exceed the scope of the consent given. United States v. Freeman, 482 F.3d 829, 831-32 (5th Cir. 2007). Morrison denied each of the first three elements.

First, define the search.

The basic circumstances are these. One day, at 6 o’clock in the morning, two police officers (Bordelon and Biondolillo) knocked on the door of Morrison’s house. Morrison’s girlfriend (Shlonda Jupiter) answered the door. What happened next is what really matters.

According to the Government’s witnesses, the three talked for a minute, and Ms. Jupiter “stepped back and opened the door some more . . . kind of moving out the way . . . allowing us in.” At the same time, apparently from the doorway, the police saw Morrison “in the hallway behind” Jupiter, “call[ed] out to him” to ask “whether he could come inside and talk,” and Morrison “answered in the affirmative.” (Slip Op. at 5.)

But according to Ms. Jupiter, she “stood between the door and the doorframe while talking to Bordelon and Biondolillo,” but they “pushed the door open and came bumping in” anyway. Once inside, they waited in the living room until Morrison came out of the bedroom. (Slip Op. at 5-6.)

The police smelled marijuana, read Morrison his rights, and asked him to sign a consent-to-search form. Bordelon either “explained its contents” or threatened to take his kids away and Ms. Jupiter to jail. (Slip Op. at 5-6.) Either way, Morrison signed the form, and the police asked whether there were any guns in the house. Morrison told them about one in his bedroom. They found it, partially loaded. (Slip Op. at 4.) That firearm was the basis of his conviction under section 922(g)(1).

The search here occurred when the police entered the house and started asking questions and looking for things.

Then, look for the consent.

Unlike many other areas of life, consent to be searched by the police “does not need to be explicit” but “may . . . be inferred from actions that reasonably communicate consent,” including “silence or failure to object [that] follows a request for consent.” (Slip Op. at 15.) The Government argued that it received implied consent to enter the house when Ms. Jupiter “kind of mov[ed] out the way.” (Slip Op. at 5, 15.) The Fifth Circuit rejected this argument for two reasons.

First, there was a factual dispute about whether or not Ms. Jupiter in fact “kind of mov[ed] out the way.” The police said she did; she said she didn’t. The district court therefore had to make a credibility determination (i.e., decide whether it believed the police or Ms. Jupiter), which it did not do. Instead, it (wrongly) concluded that both accounts essentially showed consent. In other words, the Government had to prove (i.e., convince the district court) that it had consent to enter the home. Because it did not convince the district court, it did not prove consent.

Second, even if she did “kind of mov[e] out the way,” silence or failure to object can constitute implied consent “only if that silence follows a request for consent.” (Slip Op. at 15.) In other words, the case might be different if the police had asked Ms. Jupiter if they could come in and she had “kind of mov[ed] out the way.” But they didn’t, so her silence is not consent.

Even if consent is actually given, it must also be given voluntarily. This issue turns on the totality of the circumstances, described by a six-factor test. The Fifth Circuit noted that the conversation with Ms. Jupiter at the front door was “peaceful,” that the police “did not shout at or threaten [Ms.] Jupiter,” that their weapons were holstered, and that she had testified that “she ‘was about to shut the door’ on the officers when they barged in.” (Slip Op. at 18-19.) Thus, the Fifth Circuit concluded, assuming consent was in fact given, it was given voluntarily.

The last issue raised by Morrison was that Ms. Jupiter did not have authority to consent to the police entering the home. The Fifth Circuit made short shrift of this argument: “Because [Ms.] Jupiter lived with Morrison, the district court did not clearly err by concluding that she had actual authority” to consent. (Slip Op. at 20.)

No consent + no warrant = no evidence

In sum, the Fifth Circuit found that the Government had not carried its burden of proof on the first element, actual consent. Without actual consent, and without a warrant, the search was unreasonable and violated the Fourth Amendment. But because there was a factual dispute about whether consent was actually given, the Fifth Circuit remanded to the district court to make that determination.

Credits

Senior Circuit Judge Carolyn Dineen King authored the opinion, joined by Circuit Judges Edith Jones and Gregg Costa. It’s interesting to note that while the case came out of New Orleans, all three judges came from Houston.

Public defender Samantha Jean Kuhn signed the brief and made oral argument on behalf of Morrison.