In a dissent from denial of a sua sponte vote for rehearing en banc in a direct federal criminal appeal, United States v. Ramirez, No. 22-50042 (5th Cir. Sept. 19, 2023), Judge Jerry E. Smith rakes over the panel majority, the majority of active judges who voted against rehearing, and the Justice Department (for not petitioning for rehearing).
The 2-1 panel opinion (originally published at 67 F.4th 693 (5th Cir. 2023), now unpublished under Fifth Circuit Rule 47.5) vacated a conviction based on a Fourth Amendment violation. The defendant, pursued by law enforcement, shedded his jacket and tossed it over his mother’s fence. The panel majority held that the defendant retained a property interest in the coat when he placed it inside the mother’s property line, and that a search of the jacket – which turned up a gun – was unconstitutional. Judge Ho wrote a lively dissent.
The Justice Department did not seek rehearing of the panel decision (indeed, it moved to dismiss the indictment – see below), but a judge polled the court sua sponte and rehearing was eventually denied by a vote of 9-7.
Judge Smith dissents, spares nobody. He disagrees on the merits (favoring Judge Ho’s dissent), yet goes on from there to criticize how the case was handled by the Justice Department and his colleagues.
- He criticizes the panel majority over its statement of the facts, which he considers dishonest. “[T]he majority misleads the reader by saying that ‘there is no reason to think that Ramirez would not have retrieved the jacket before going in for the night.‘ 67 F.4th at 698 (emphasis added). That implication―that Ramirez would grab the jacket and retire for the night at his mother’s house―is false. Ramirez lived elsewhere with his wife (who was estranged from his mother) and did not sleep―regularly or even occasionally―at his mother’s house.”
- He takes issue with the Justice Department for not seeking rehearing, a decision that he believes might have influenced his colleagues’ votes. “Seemingly oblivious to the consequences of these holdings, the Attorney General did not bother to petition for en banc or even panel rehearing. That is frustrating to this court where, as here, the panel opinion is seriously flawed . . . . We can only hope that, having declined to support its position in an en banc petition, the government will do so at the sua sponte en banc rehearing of that matter.”
- He queries the reasons of the nine judges for voting against rehearing. “As the will of the majority, I respect that decision, which could be the sum of (1) judges who agree with the panel majority; (2) judges who aren’t willing to bite the bullet where the government seemingly doesn’t care; (3) judges who believe the case is not enbancworthy; (4) judges who place weight on the fact that Ramirez is nearing the end of his sentence; and (5) judges who note that the opinion is now unpublished.”
- He cites the four-month hold that the original panel placed on the mandate: “This delay caused considerable confusion. The panel opinion had issued on May 10, but the mandate of this court had not. The attorneys and the district court over looked the latter. Unbeknownst to this court, in late June the attorneys, by agreement and thinking the case was over, had moved, in the district court, for judgment of dismissal of the indictment and Ramirez’s release from custody. The district court complied. Once this court became aware of that, it, on August 1, directed the attorneys to explain, suggesting that the district court was without jurisdiction in the absence of a mandate. The attorneys and court conscientiously agreed to withdrawal of the orders.”
- Finally, he disapproves of the panel decision to un-publish the opinion. “Highly consequential opinions should not be designated as unpublished in an obvious effort to discourage judges from voting in favor of en banc rehearing . . . . [fn.] By designating an opinion as unpublished, a panel can declare the winner it prefers without necessarily soiling the jurisprudence for future cases.”
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