Monthly archive

November 2012 - Page 2

Federal Corner: New Chief Judge for the Fifth Circuit – By F. R. Buck Files Jr.


The Honorable Carl E. Stewart is now the Chief Judge of the United States Court of Appeals for the Fifth Circuit. He is a Clinton appointee who has served on the Court since 1994 and became Chief Judge on October 1, 2012. He is the first African-American to serve in this capacity.

Chief Judge Stewart is a Louisiana native who earned his undergraduate degree at Dillard University and his law degree at Loyola University New Orleans School of Law. He lawyered in the Army JAG Corps, as an assistant United States Attorney, and in the private practice of law. Before becoming a federal appellate judge, he served for six years as the judge of the First Judicial District Court of Louisiana and for three years as a judge of Louisiana’s Second Circuit Court of Appeals.

At this year’s Conference of the Bar Association of the Eastern District of Texas, the Hon­or­able Leonard E. Davis, Chief Judge of the Eastern District, introduced Chief Judge Stewart as a “judge’s judge.” I can understand why. In his remarks to the judges and lawyers in attendance, Chief Judge Stewart made these points abundantly clear:

  • That he was going to visit all nine of the judicial districts of the Circuit in order that he might talk to the judges and lawyers of the Circuit.
  • That he was going to sit in during the trial of patent cases in the Marshall Division of the Eastern District of Texas in order that he could understand how these cases impacted the workload the district judges.
  • That, when an issue was raised as to an allegedly erroneous ruling by a trial judge, he would look to see if the trial judge was fairly put on notice as to the issue now being argued on appeal.

From observing Chief Judge Stewart and after visiting with him, I concluded that he truly enjoys being with lawyers and other judges and interacting with them. That’s good.

So what can we expect from Chief Judge Stewart as he heads the Court? I don’t know, but I do like to look at the cases in which a judge dissents. These are some in which he did so.

Four En Banc Cases:

  • United States v. Kebodeaux, 687 F.3d 232 (5th Cir., 2012)

        The Court held that the SORNA registration requirement was unconstitutional as applied to defendant and reversed the defendant’s judgment of conviction. (Defendant wins.)

        [Circuit Judge Haynes filed dissenting opinion, which was joined by Circuit Judges King, W. Eugene Davis, Carl E. Stewart, and Leslie H. Southwick.]

  • United States v. Seale, 577 F.3d 566 (5th Cir., 2009)

        The Court held that it was appropriate to certify to the United States Supreme Court the question of what statute of limitations applies to a prosecution under the federal kid­napping statute for a kidnapping offense that occurred in 1964 but was not indicted until 2007 and certified the question to the United States Supreme Court.

        [Circuit Judge Carl E. Stewart dissented.]

  • United States v. Brigham, 382 F.3d 500 (5th Cir., 2004)

        The Court held that where neither the initial stop nor stop’s duration violated the Fourth Amendment, the driver’s consent to search was not unconstitutionally tainted, and evidence gathered from vehicle did not have to be suppressed. The defendant’s judgment of conviction was affirmed. (Defendant loses.)

        [Circuit Judges DeMoss dissented and filed opinion, in which Circuit Judges Wiener, Carl E. Stewart, and Dennis joined.]

  • United States v. Gould, 364 F.3d 578 (5th Cir., 2004)

        The Court held that protective sweep in case at hand was valid, as officers were legally within mobile home for legitimate governmental purpose and had reasonable suspicion of danger and sweep was properly limited in scope and dura­tion. The District Court’s order granting the defendant’s motion to suppress was in error. The Court reversed the dis­trict court’s order granting the defendant’s motion to suppress. (Defendant loses.)

        [Circuit Judge DeMoss filed dissenting opinion in which Circuit Judge Carl E. Stewart joined.]

Three Panel Cases:

  • United States v. Justice, 430 Fed.Appx. 274, 2011 WL 2473619 (5th Cir., 2011)

        The Court held that (1) good cause to allow hearsay testimony of probation officer and police officer was lacking; (2) hearsay statement of individual who was in crack house with defendant at time of search was not inherently reliable; (3) police report pertaining to search was not inherently re­liable; and (4) error in not allowing defendant to confront witnesses against him was not harmless. The Court reversed the district court’s order granting the defendant’s motion to suppress. (Defendant loses.)

        [Circuit Judge Stewart dissented and filed opinion.]

  • United States v. Limscomb, 619 F.3d 474, (5th Cir., 2010)

        The Court held that (1) defendant’s conviction for felony possession of firearm was conviction for crime of violence so as to subject defendant to sentencing enhancement, and (2) district court was not required to apply categorical approach and affirmed the defendant’s judgment of conviction. (Defendant loses.)

        [Circuit Judge Carl E. Stewart filed dissenting opinion.]

  • United States v. Martinez-Paramo, 380 F.3d 799 (5th Cir., 2004)

        The Court held that record was insufficient to decide whether defendant’s prior Pennsylvania offense of terroristic threats was crime of violence warranting enhancement, and remand thus was appropriate. The Court affirmed in part and vacated in part the defendant’s judgment of conviction.

        [Circuit Judge Carl E. Stewart filed opinion concurring in part and dissenting in part.]

My Thoughts

  • Without being critical of anyone, I would predict that Judge Stewart is going to impact the culture of the Court—for the better. His present tour of the judicial districts within the Circuit and his voiced concerns for the district courts of the Circuit make this an easy prediction.
  • Every year, the judges of the Circuit gather for the annual Fifth Circuit judicial conference. Over the past several years, the “guest list” has become more exclusive and less inclusive. I would predict that this is going to change for the better. It’s difficult to know what folks are thinking if you don’t invite them to the conference and listen to what they have to say.
  • When a lawyer is attempting to preserve an issue for appeal, he or she should be very careful that the record reflects that the trial judge was put on notice as to that issue.

Said & Done



A big association congrats go out to Kristin Postell, who got the two-word verdict on her very first solo jury trial—in Taylor County Court at Law #1. An assault family violence case, the complainant and defendant were estranged at the time of the alleged assault. Both testified, part of only two-and-a-half hours of testimony, and the jury deliberated for just two hours. As listserve compliments rolled in, a common theme predominated: You never get tired of hearing those two words, Kristin. Way to go.

Stan Brown received a “not guilty” on a charge of first-degree possession of cocaine with intent to deliver (involving about 9 grams), following one day of testimony and two hours of deliberations. Stan’s client, a 73-year-old grandmother, simply never took much interest in the comings and goings of her 20-something-year-old grandsons, and the jury agreed. After the trial court sustained the State’s objection to medical records showing COPD and chronic back problems requiring lots of medication, Stan rested. Congratulations, Stan, on a job well done.

Will Lara secured the two-word verdict on a tough battle over a charge of harassment. Client was accused of harassment by telephone, alleged to have left several messages on (ex-wife) complainant’s voicemail that “alarmed” her with the threat of bodily injury. In the course of the trial in Webb County Court of Law #1, Will says the judge allowed introduction of extraneous offenses, denied a hearing outside the presence of the jury, denied a presentation of a complete defense, and included definitions for common terms that would rise to the level of commenting on the weight of the evidence in the jury charge. State did not have the voicemail and intended to introduce detail of specific messages through a witness and officer. (The alleged voice messages were not presented because the lead investigator failed to preserve the evidence. The officer alleged that he listened to these messages and transcribed them the “one” time he heard them.) A blow-by-blow account can be seen on the TCDLA listserve. Nice work, Will.

Kudos to TCDLA member Casie Gotro, who heard the two-word verdict in a murder case in the 263rd in Harris County. Heather Lytle, who sat second chair with her, says she wishes she could have videotaped her performance: “From voir dire through closing, Casie told her client’s moving story of self-defense and defense of his wife, and pulled the jury into that story. It was a hard-fought battle, against a good prosecutor and a difficult judge. The verdict came in an hour and a half. When we talked to the jury afterward, one man said to Casie, ‘I just knew you were the real deal.’” High praise indeed. Good work, Casie and Heather.

Mike Trent scored a big victory on a 25-Life habitual on an agg assault charge. He notes that it boiled it down to the word of the complaining witness and they didn’t believe her. Mike thought it was going to be a death march in the morning, but the acquittal only took 16 minutes. As Mike says: “The moral is: have hope! No case is un-winnable!” Well done, Mike.