This document summarizes the standards of review used by the Fifth Circuit Court of Appeals for various issues. It provides that the Fifth Circuit will review questions of law de novo, review factual findings for clear error, and review decisions committed to the district court's discretion for abuse of discretion. Specifically, it notes that the Fifth Circuit will review constitutional claims, alleged violations of the Confrontation Clause, and determinations of whether a confession was voluntary de novo.
1. FIFTH CIRCUIT STANDARDS OF REVIEW
by Timothy Crooks
(Updated Mar. 2008)
CAUTION: This document no longer contains citations to denials of certiorari for the cited
cases.
ABUSE OF DISCRETION: “A district court abuses its discretion if it bases its decision on an
error of law or a clearly erroneous assessment of the evidence.”
United States v. Mann, 161 F.3d 840, 860 (5th Cir. 1998) (citing Esmark Apparel Co. v.
James, 10 F.3d 1156, 1163 (5th Cir. 1994)); accord United States v. Insaulgarat, 378 F.3d
456, 464 (5th Cir. 2004) (citing Mann)
ABUSE OF THE WRIT -- See same subheading under HABEAS CORPUS
ALLEN CHARGE -- See same subheading under JURY INSTRUCTIONS
ALLOCUTION – See same subheading under SENTENCING
APPEAL:
District court's finding that there was/was not “excusable neglect” for the late filing of a
notice of appeal: abuse of discretion
United States v. Clark, 193 F.3d 845, 846 (5th Cir. 1999) (citations omitted); United
States v. Clark, 51 F.3d 42, 43 n.5 (5th Cir. 1995) (citations omitted)
ARMED CAREER CRIMINAL ACT (18 U.S.C. § 924(e)):
Whether prior is a qualifying prior under Act: de novo
United States v. Williams, 120 F.3d 575, 578 (5th Cir. 1997), citing United States v.
Martinez-Cortez, 988 F.2d 1408, 1410 (5th Cir. 1993)
ATTORNEY-CLIENT PRIVILEGE:
Factual findings: clearly erroneous
Application of controlling law to facts: de novo
1
2. United States v. Neal, 27 F.3d 1035, 1048 (5th Cir. 1994), citing In re Auclair, 961
F.2d 65, 69 (5th Cir. 1992)
ATTORNEY DISCIPLINE:
“We review the district court’s imposition of particular discipline for an abuse of discretion,
but consider whether an attorney’s conduct is subject to sanction de novo.”
Sealed Appellant 1 v. Sealed Appellee 1, 211 F.3d 252, 254 (5th Cir. 2000), citing
In re Sealed Appellant, 194 F.3d 666, 670 (5th Cir. 1999)
AUDIO RECORDINGS -- See same subheading under EVIDENCE
BATSON [v. KENTUCKY] CHALLENGES:
Credibility: “Determining whether counsel speaks the truth in offering its reasons [for a jury
strike] turns on in-person credibility assessments, so we review for clear error.”
United States v. Webster, 162 F.3d 308, 349 (5th Cir. 1998) (citations omitted)
Ruling on motivation for strike: clearly erroneous
United States v. Stedman, 69 F.3d 737, 739 (5th Cir. 1995), citing United States v.
Bentley-Smith, 2 F.3d 1368, 1372 (5th Cir. 1993)
District court's findings concerning the presence of purposeful discrimination vel non in
jury selection: clearly erroneous
United States v. Pofahl, 990 F.2d 1456, 1466 (5th Cir. 1993)
District court’s determination that prosecution gave a race-neutral explanation: clearly
erroneous
United States v. Fields, 72 F.3d 1200, 1206 & n.9 (5th Cir. 1996) (citations omitted)
BENCH TRIAL:
Sufficiency of the evidence: court must affirm the conviction if there is substantial evidence.
United States v. Ybarra, 70 F.3d 362, 364 (5th Cir. 1995), citing United States v.
Jennings, 726 F.2d 189, 190 (5th Cir. 1984); see also United States v. Davis, 993
F.2d 62, 66 (5th Cir. 1993) (quoted in Ybarra)
2
3. BILL OF PARTICULARS:
Denial of bill of particulars: clear abuse of discretion
United States v. McKinney, 53 F.3d 664, 674 (5th Cir.1995), citing United States v.
Vasquez, 867 F.2d 872, 874 (5th Cir. 1989)
BRADY [V. MARYLAND]:
Brady determinations (whether Brady was violated by government nondisclosure of
exculpatory evidence): de novo, using standard of United States v. Bagley, 473 U.S. 667
(1985)
United States v. Green, 46 F.3d 461, 464 (5th Cir. 1995)
See also United States v. Lowder, 148 F.3d 548, 550 (5th Cir. 1998) (“We review the
district court’s Brady determination de novo.”), citing United States v. Dixon, 132
F.3d 192, 199 (5th Cir. 1997); accord United States v. Hughes, 230 F.3d 815, 819
(5th Cir. 2000) (citations omitted); United States v. Freeman, 164 F.3d 243, 248 (5th
Cir. 1999) (citing Green)
See also United States v. Martinez, 151 F.3d 384, 390 (5th Cir. 1998) (“Whether disclosures
of impeachment information violate any constitutional or statutory right of the defendant is
determined as a question of law. This court reviews questions of law de novo.”) (citations
omitted)
Factual findings: clearly erroneous
United States v. Hughes, 230 F.3d 815, 819(5th Cir. 2000) (citation omitted)
District court’s determination (from in camera review) that presentence reports of
government witnesses do not contain Brady/Giglio material: clearly erroneous
United States v. Gaytan, 74 F.3d 545, 557 (5th Cir. 1996) (citation omitted)
BRUTON [V. UNITED STATES]:
“We review Bruton issues for abuse of discretion.”
United States v. Fletcher, 121 F.3d 187, 197 (5th Cir. 1997), citing United States v.
Beaumont, 972 F.2d 91, 95 (5th Cir. 1992); see also United States v. Mann, 161 F.3d
840, 860 (5th Cir. 1998) (also citing Beaumont). Bruton error calls for reversal
unless it was invited by the defendant or harmless beyond a reasonable doubt. United
3
4. States v. Jimenez, 509 F.3d 686, 691 (5th Cir. 2007).
ALSO:
“Bruton issues, failures to remove references to co-defendants, are reviewed for abuse of
discretion.”
United States v. Nutall, 180 F.3d 182, 188 (5th Cir. 1999) (citing Fletcher, supra)
CLOSING ARGUMENT:
Limitations on time allowed for closing argument: abuse of discretion
United States v. Leal, 30 F.3d 577, 586 (5th Cir. 1994), citing United States v.
Bernes, 602 F.2d 716, 722 (5th Cir. 1979)
CLOSURE (of public trial):
Whether a defendant's constitutional right to a public trial was violated by partial closure
of his trial: de novo
United States v. Osborne, 68 F.3d 94, 98 (5th Cir. 1995)
CO-CONSPIRATORS' STATEMENTS:
Admission of co-conspirators' statement into evidence under Fed. R. Evid. 801(d)(2)(E):
abuse of discretion
United States v. Cornett, 195 F.3d 776, 782 (5th Cir. 1999), citing United States v.
Narviz-Guerra, 148 F.3d 530, 536 (5th Cir. 1998)
Determinations that statement was made by a co-conspirator and in furtherance of the
conspiracy: clearly erroneous
United States v. Krout, 66 F.3d 1420, 1426 (5th Cir. 1995) (citation omitted)
SEE ALSO United States v. Green, 180 F.3d 216, 222 (5th Cir. 1999) (“Ruling that
a statement was made in furtherance of a conspiracy is a factual finding, reversible
only if clearly erroneous.”), citing United States v Stephens, 964 F.2d 424, 434 (5th
Cir. 1992)
COLLATERAL ESTOPPEL:
4
5. “The application of collateral estoppel is a question of law that we review de novo.”
United States v. Brackett, 113 F.3d 1396, 1398 (5th Cir. 1997) (citations omitted);
see also United States v. Yeager, ___ F.3d ____, 2008 WL 698930, *2 (5th Cir. Mar.
17, 2008)
COMMERCE CLAUSE CHALLENGES – See CONSTITUTIONALITY
COMPETENCY -- See INSANITY/INCOMPETENCY
CONFESSIONS:
Generally: “A district court’s determination that a confession is voluntary is a question of
law and is reviewed de novo, but the factual conclusions underlying the determination are
reviewed for clear error.”
United States v. Bell, 367 F.3d 452, 460-61 (5th Cir. 2004) (citing United States v.
Garcia Abrego, 141 F.3d 142, 170 (5th Cir. 1998)
Findings of fact relative to confession: clearly erroneous
United States v. Restrepo, 994 F.2d 173, 183 (5th Cir. 1993); United States v.
Doucette, 979 F.2d 1042, 1045 (5th Cir. 1992)
Miranda violation:
“The question of whether Miranda’s guarantees have been impermissibly denied to
a criminal defendant is a matter of constitutional law, meriting de novo review.
United States v. Fike, 82 F.3d 1315, 1324 (5th Cir. 1996), citing United
States v. Harrell, 894 F.2d 120, 122-23 (5th Cir. 1990); see also United
States v. Cardenas, 410 F.3d 287, 292 (5th Cir. 2005).
Whether there has been a Miranda waiver: clearly erroneous
United States v. Chapa-Garza, 62 F.3d 118, 121 (5th Cir. 1995)
Ultimate issue of voluntariness of confession: de novo
United States v. Restrepo, 994 F.2d 173, 183 (5th Cir. 1993); United States v.
Doucette, 979 F.2d 1042, 1045 (5th Cir. 1992)
CONFIDENTIAL INFORMANTS -- See INFORMANTS
5
6. CONFLICT OF INTEREST:
Disqualification of defense counsel for conflict of interest: abuse of discretion
United States v. Sotelo, 97 F.3d 782, 791 (5th Cir. 1996), citing United States v.
Vasquez, 995 F.2d 40, 42 (5th Cir. 1993)
Finding of a conflict of interest: abuse of discretion
United States v. Bankston, 182 F.3d 296, 308 (5th Cir. 1999), citing United States
v. Sotelo, 97 F.3d 782, 791 (5th Cir. 1996)
Defendants' waiver of conflict-free counsel: reviewed for simple error
United States v. Moore, 37 F.3d 169, 174 (5th Cir. 1994), citing United States v.
Snyder, 707 F.2d 139, 144 (5th Cir. 1983)
Denial of defense counsel’s motion to withdraw based upon a conflict of interest: abuse of
discretion
United States v. Medina, 161 F.3d 867, 870 (5th Cir. 1998), citing United States v.
Wild, 92 F.3d 304, 307 (5th Cir. 1996)
CONFRONTATION -- See also CROSS-EXAMINATION
Generally: The Sixth Amendment prohibits introduction of out of court testimonial
statements unless the witness is unavailable and the defendant had an adequate opportunity
for cross-examination. Crawford v. Washington, 541 U.S. 36, 53 (2004). The appellate
court reviews alleged violations of the Confrontation Clause de novo . United States v. Bell,
367 F.3d 452, 465 (5th Cir. 2004) (citing United States v. McCormick, 141 F.3d 142, 170
(5th Cir. 1998)); see also Barnes v. Johnson, 184 F.3d 451, 454 (5th Cir. 1999) (“This court
reviews de novo constitutional challenges concerning the right to confront adverse
witnesses.”) (citing United States v. Grandlund,71 F.3d 507, 509 (5th Cir. 1995)).
See also Gochicoa v. Johnson, 118 F.3d 440, 445 (5th Cir. 1997) (habeas)
The government must establish that a confrontation clause error was harmless beyond
a reasonable doubt. Under this standard, reversal is required if there was a
“reasonable possibility that the improperly admitted evidence contributed to the
conviction.” United States v. Harper, 514 F.3d 456, 461 (5th Cir. 2008), citing United
States v. Ibarra, 493 F.3d 526, 532 (5th Cir. 2007).
CONSENT -- See SEARCH AND SEIZURE
6
7. CONSTITUTIONAL STANDARDS -- See also CONSTITUTIONALITY
Constitutional claims: de novo
United States v. Webster, 162 F.3d 308, 333 (5th Cir. 1998), citing United States v.
Estrada-Trochez, 66 F.3d 733, 735 (5th Cir. 1995)
Incorrect application of constitutional standards: de novo
United States v. Estrada-Trochez, 66 F.3d 733, 735 (5th Cir. 1995), citing
United States v. Perez-Torrez, 15 F.3d 403, 406 (5th Cir. 1994); United
States v. Shaw, 920 F.2d 1225, 1228 (5th Cir. 1991), citing American Civil
Liberties Union v. State of Mississippi, 911 F.2d 1066, 1069 (5th Cir. 1990)
Commerce Clause challenges:
“When reviewing an act of Congress passed under the authority of the Commerce
Clause, we review the statute under the rational basis standard. The burden for the
challenger is high because federal commerce legislation continues to merit a high
degree of judicial deference. In applying this deferential standard, due respect for the
decisions of a coordinate branch of Government demands that we invalidate a
congressional enactment only upon a plain showing that Congress has exceeded its
constitutional bounds.”
United States v. Bredimus, 352 F.3d 200, 203 (5th Cir. 2003) (internal
quotation marks, brackets, and citations omitted; emphasis in original)
Due process:
“We review de novo an alleged due process violation . . . .”
United States v. Williams, 343 F.3d 423, 439 (5th Cir. 2003) (citing
United States v. Runyan, 290 F.3d 223, 245 (5th Cir.), cert. denied,
537 U.S. 888 (2002))
CONSTITUTIONALITY: de novo
United States v. Robinson, 367 F.3d278, 290 (5th Cir. 2004) (“The constitutionality of a
federal statute is a question of law reviewed de novo.”) (citing United States v. Ho, 311 F.3d
589, 601 (5th Cir. 2002)); United States v. Bredimus, 352 F.3d 200, 203 (5th Cir. 2003)
(“This court reviews a constitutional challenge to a federal statute de novo.”) (citations
omitted)
7
8. ALSO:
“We review the constitutionality of a federal statute and the district court’s
interpretation of a statute de novo.”
United States v. Rasco, 123 F.3d 222, 226 (5th Cir. 1997)(citations omitted)
Commerce Clause challenges:
“When reviewing an act of Congress passed under the authority of the Commerce
Clause, we review the statute under the rational basis standard. The burden for the
challenger is high because federal commerce legislation continues to merit a high
degree of judicial deference. In applying this deferential standard, due respect for the
decisions of a coordinate branch of Government demands that we invalidate a
congressional enactment only upon a plain showing that Congress has exceeded its
constitutional bounds.”
United States v. Bredimus, 352 F.3d 200, 203(5th Cir. 2003) (internal
quotation marks, brackets, and citations omitted; emphasis in original)
Due process:
“We review de novo an alleged due process violation . . . .”
United States v. Williams, 343 F.3d 423, 439 (5th Cir. 2003) (citing
United States v. Runyan, 290 F.3d 223, 245 (5th Cir. 2002))
CONTINUANCE:
Denial of motion for continuance: abuse of discretion
United States v. Correa-Ventura, 6 F.3d 1070, 1074 (5th Cir. 1993)
Grant or denial of motion for continuance: abuse of discretion
United States v. Alix, 86 F.3d 429, 434-35 (5th Cir. 1996), citing United States v.
Alford, 999 F.2d 818, 821 (5th Cir. 1993)
“CRIME OF VIOLENCE”:
Whether a crime constitutes a “crime of violence” under 18 U.S.C. § 924(c): de novo
United States v. Jennings, 195 F.3d 795, 797 (5th Cir. 1999), citing United States v.
8
9. Credit, 95 F.3d 362, 364 (5th Cir. 1996)
CROSS-EXAMINATION -- See also CONFRONTATION
Rulings limiting the scope or extent of cross-examination:
Trial: abuse of discretion
United States v. Alexius, 76 F.3d 642, 644 (5th Cir. 1996), citing
United States v. Townsend, 31 F.3d 262, 268 (5th Cir. 1994); United
States v. Coleman, 997 F.2d 1101, 1105 (5th Cir. 1993); United
States v. Barksdale-Contreras, 972 F.2d 111 (5th Cir. 1992); see also
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
Suppression hearing: abuse of discretion
United States v. Stewart, 93 F.3d 189, 193 (5th Cir. 1996)
Decision to permit a certain line of cross-examination: abuse of discretion
United States v. Smith-Bowman, 76 F.3d 634, 636 (5th Cir. 1996), citing United
States v. Candelaria-Gonzalez, 547 F.2d 291, 294 (5th Cir. 1977)
DEPORTATION – See REMOVAL, infra
DEPOSITIONS:
Denial of motion to take depositions under Fed. R. Crim. P. 15(a): abuse of discretion
United States v. Aggarwal, 17 F.3d 737, 741-42 (5th Cir. 1994)
DISCOVERY:
Alleged errors in administration of discovery rules: abuse of discretion
United States v. Neal, 27 F.3d 1035, 1049 (5th Cir. 1994, citing United States v.
Gonzalez, 967 F.2d 1032, 1035 (5th Cir. 1992); see also United States v. Webster,
162 F.3d 308, 333 (5th Cir. 1998) (citing United States v. Mora, 994 F.2d 1129, 1138
(5th Cir. 1993)) & Webster, id. at 339 (citations omitted)
Alleged discovery violations: abuse of discretion
United States v. Dukes, 139 F.3d 469, 476 (5th Cir. 1998), citing United States v.
9
10. Bullock, 551 F.2d 1377, 1384 (5th Cir. 1977)
Discovery rulings: abuse of discretion
United States v. Webster, 162 F.3d 308, 336 (5th Cir. 1998) (citations omitted)
Order for government production of discovery under Rule 16: abuse of discretion
United States v. Mann, 61 F.3d 326, 331 (5th Cir. 1995), citing United States v.
Sarcinelli, 667 F.2d 5 (5th Cir. 1982)
District court’s grant or denial of disclosure of an informant’s identity: abuse of discretion
United States v. Thomas, 348 F.3d 78, 85 (5th Cir. 2003) (citing United States v.
Wilson, 77 F.3d 105, 111 (5th Cir. 1996)); United States v. Wilson, 77 F.3d 105, 111
(5th Cir. 1996) (citing United States v. Evans, 941 F.2d 267, 272 (5th Cir. 1991))
Remedies for discovery violations: abuse of discretion
United States v. Katz, 178 F.3d 368, 372 (5th Cir. 1999), citing United States v.
Bentley, 875 F.2d 1114, 1118 (5th Cir. 1989)
DISQUALIFICATION of defense counsel: abuse of discretion
United States v. Coleman, 997 F.2d 1101, 1104 (5th Cir. 1993); see also
Wheat v. United States, 486 U.S. 153, 163-64 (1988); United States v.
Reeves, 892 F.2d 1223, 1227 (5th Cir. 1990); but see United States v.
Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 2565 (2006)(no showing of
prejudice required for improper denial of choice of counsel).
DOUBLE JEOPARDY:
Collateral estoppel -- See separate topic heading of same name
Denial of motion to dismiss for double jeopardy: de novo
United States v. Botello, 991 F.2d 189, 192 (5th Cir. 1993)
Factual findings: clearly erroneous
United States v. Fields, 72 F.3d 1200, 1209 & nn.26, 30 (5th Cir. 1996),
citing United States v. Deshaw, 974 F.2d 667, 669 (5th Cir. 1992)
In habeas case: de novo
10
11. Shute v. State of Texas, 117 F.3d 233, 238 (5th Cir. 1997) (citations omitted)
Review of double jeopardy challenges to multiple prosecutions/imposition of
multiple punishments: de novo
United States v. Cruce, 21 F.3d 70, 74 (5th Cir. 1994), citing United States
v. Deshaw, 974 F.2d 667, 669 (5th Cir. 1992)
DUE PROCESS:
Generally:
“We review de novo an alleged due process violation . . . .”
United States v. Williams, 343 F.3d 423, 439 (5th Cir. 2003) (citing
United States v. Runyan, 290 F.3d 223, 245 (5th Cir. 2002))
Existence of substantial interference by government with a defense witness: clearly
erroneous
United States v. Thompson, 130 F.3d 676, 686-87 (5th Cir. 1997), citing United
States v. Pinto, 850 F.2d 927, 932 (2nd Cir. 1988)
DUPLICITY: de novo
United States v. Sharpe, 193 F.3d 852, 866 (5th Cir. 1999), citing United States v.
Trammell, 133 F.3d 1343, 1354 (10th Cir. 1998)
ELECTRONIC SURVEILLANCE -- See WIRETAPS
ENTRAPMENT:
Generally: “We review de novo a trial court’s refusal to instruct the jury on the defense of
entrapment.”
United States v. Gutierrez, 343 F.3d 415, 419 (5th Cir. 2003) (citing United
States v. Ogle, 328 F.3d 182, 185 (5th Cir. 2003))
Whether evidence is insufficient to support a jury finding that a defendant was not entrapped:
“‘When a jury, which was fully charged on entrapment, rejects the defendant’s
entrapment defense, the applicable standard of review is the same as that which
11
12. applies to sufficiency of the evidence.’”
United States v. Thompson, 130 F.3d 676, 688 (5th Cir. 1997), quoting
United States v. Rodriguez, 43 F.3d 117, 126 (5th Cir. 1995)
SEE ALSO United States v. Gutierrez, 343 F.3d 415, 419 (5th Cir.
2003) (“[W]hen a defendant’s properly requested entrapment
instruction is undergirded by evidence sufficient to support a
reasonable jury’s finding of entrapment, the district court errs
reversibly by not adequately charging the jury on the theory of
entrapment.”) (citing United States v. Ogle, 328 F.3d 182, 185 (5th
Cir. 2003) (internal quotation marks and further citation omitted).
EQUITABLE TOLLING -- See HABEAS CORPUS, infra
EVIDENCE:
Admissibility: abuse of discretion
United States v. Coleman, 997 F.2d 1101, 1104 (5th Cir. 1993); see also
United States v. Lindell, 881 F.2d 1313 (5th Cir. 1989); United States v.
Anderson, 933 F.2d 1261, 1268 (5th Cir. 1991)
Review is “heightened in a criminal case.” United States v. Gutierrez-Farias, 294
F.3d 657, 662 (5th Cir. 2004)
FED. R. EVID. 403 determinations: abuse of discretion
United States v. Willis, 6 F.3d 257, 260 (5th Cir. 1993), citing United States
v. Robichaux, 995 F.2d 565, 568 (5th Cir. 1993) and United States v. Dula,
989 F.2d 772, 778 (5th Cir. 1993)
FED. R. EVID. 404(b) determinations:
District court must make Beechum1 findings; if it does, findings are reviewed for
abuse of discretion. If the trial court "did not articulate its reasoning," court of
appeals may conduct the Beechum analysis itself. If, however, the factors on which
the Beechum analysis are made are not "readily apparent," remand is required due to
the "uncertainty of the record."
1
See United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc) (prior to
admission of 404(b) evidence, district court is required to determine that evidence is (1) relevant
to crime charged and (2) not unfairly prejudicial).
12
13. United States v. Robinson, 700 F.2d 205, 212-14 (5th Cir. 1983)
BUT SEE United States v. Fox, 69 F.3d 15, 20 (5th Cir. 1995) (admission of 404(b)
evidence over objection reviewed under a heightened abuse of discretion standard)
(citations omitted); accord United States v. Floyd, 343 F.3d 363, 367 (5th Cir. 2003)
(noting that, “[i]n criminal cases, our review is ‘necessarily heightened’”) (quoting
United States v. Gonzalez, 76 F.3d 1339, 1347 (5th Cir. 1996)); United States v.
Buchanan, 70 F.3d 818, 831 (5th Cir. 1996) (citations omitted)
BUT SEE United States v. Brown, 71 F.3d 1158, 1162 (5th Cir.1995) ("We review
the district court's admission of evidence under Rule 404(b) under a 'careful
application' of the abuse of discretion standard."), quoting United States v. Anderson,
933 F.2d 1261, 1265 (5th Cir. 1991)
Rulings on the admissibility of expert testimony:
Abuse of discretion, United States v. Hitt, 473 F.3d 146, 157 (5th Cir. 2006);
heightened in criminal cases, United States v. Gutierrez-Farias, 294 F.3d 657, 662
(5th Cir. 2004). See generally Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993).
Admission of audio recordings: abuse of discretion
United States v. Buchanan, 70 F.3d 818, 827 (5th Cir. 1996), citing United States v.
Eakes, 783 F.2d 499, 506-07 (5th Cir. 1986)
Co-conspirators’ statements:
Admission of co-conspirators' statement into evidence under Fed. R. Evid.
801(d)(2)(E): abuse of discretion
United States v. Robinson, 367 F.3d 278, 291 (5th Cir. 2004) (“We review
the admission f hearsay evidence under the non-hearsay definition of Rule
801(d)(2)(E) for abuse of discretion.”) (internal quotation marks and citation
omitted); United States v. Cornett, 195 F.3d 776, 782 (5th Cir. 1999)
Determinations that statement was made by a co-conspirator and in furtherance of
the conspiracy: clearly erroneous
United States v. Krout, 66 F.3d 1420, 1426 (5th Cir. 1995) (citation omitted)
13
14. SEE ALSO United States v. Green, 180 F.3d 216, 222 (5th Cir. 1999) (“Ruling that
a statement was made in furtherance of a conspiracy is a factual finding, reversible
only if clearly erroneous.”), citing United States v Stephens, 964 F.2d 424, 434 (5th
Cir. 1992)
Decision whether to admit expert testimony on eyewitness reliability: abuse of discretion
United States v. Jackson, 50 F.3d 1335, 1340 (5th Cir. 1995), citing United States v.
Moore, 786 F.2d 1308, 1312 (5th Cir. 1986)
Admission of photographs into evidence: abuse of discretion
United States v. Weeks, 919 F.2d 248, 253 (5th Cir. 1990); United States v. Kaiser,
545 F.2d 467, 476 (5th Cir. 1977)
Decision whether to allow or disallow polygraph evidence: abuse of discretion
United States v. Pettigrew, 77 F.3d 1500, 1514-15 (5th Cir. 1996) (citations omitted)
Scientific evidence (Rule 702): abuse of discretion
United States v. Pettigrew, 77 F.3d 1500, 1514-15 (5th Cir. 1996) (citations omitted)
BUT SEE Eiland v. Westinghouse Corp., 58 F.3d 176, 180 (5th Cir. 1995) (cited in
Pettigrew) (admission or exclusion of expert opinion testimony not disturbed unless
"manifestly erroneous")
Sentencing:
“We review the exclusion of sentencing evidence for abuse of discretion.”
United States v. Mitchell, 366 F.3d 376, 379 (5th Cir. 2004) (citation
omitted)
Admission of tape recordings: abuse of discretion
United States v. Thompson, 130 F.3d 676, 683 (5th Cir. 1997) (citations omitted)
Determination of trustworthiness of tape recording: abuse of discretion
United States v. Dukes, 139 F.3d 469, 473 (5th Cir. 1998), citing United
States v. Stone, 960 F.2d 426, 436 (5th Cir. 1992)
14
15. Admission of transcript of tape recording: abuse of discretion
United States v. Thompson, 130 F.3d 676, 683 (5th Cir. 1997), citing United States
v. Wilson, 578 F.2d 67, 69 (5th Cir. 1978)
EVIDENTIARY HEARING:
Denial of evidentiary hearing (pretrial motions): abuse of discretion
United States v. Gutierrez, 343 F.3d 415, 421 (5th Cir. 2003) (citing United States
v. Linetsky, 533 F.2d 192, 203 (5th Cir. 1976)); see also United States v. Harrelson,
705 F.2d 733, 737 (5th Cir. 1983); United States v. Poe, 462 F.2d 195, 197 (5th Cir.
1972).
However, an evidentiary hearing is required – and hence a district court perforce
abuses its discretion in denying a hearing – where “‘'the defendant alleges sufficient
facts which, if proven, would justify relief.’” United States v. Mergist, 738 F.2d 645,
648 (5th Cir. 1984) (quoting Harrelson, 705 F.2d at 737).
Denial of evidentiary hearing (sentencing): abuse of discretion
United States v. Hass, 199 F.3d 749, 751 (5th Cir. 1999), citing United States v.
Henderson, 19 F.3d 917, 927 (5th Cir. 1994)
Denial of § 2255 without holding evidentiary hearing: abuse of discretion
United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998), citing United States
v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992) (per curiam)
New trial motion: Refusal of a hearing on a motion for new trial is reviewed for abuse of
discretion.
United States v. Blackthorne, 378 F.3d 449, 452 (5th Cir. 2004) (quoting United
States v. Reedy, 304 F.3d 358, 371 n.17 (5th Cir. 2002); internal quotation marks,
brackets, and further citation omitted)
EXCULPATORY EVIDENCE: See BRADY
EXCUSABLE NEGLECT (for failure to timely file notice of appeal): abuse of discretion
United States v. Clark, 51 F.3d 42, 43 n.5 (5th Cir. 1995) (citations omitted)
EXIGENT CIRCUMSTANCES: See SEARCH AND SEIZURE
15
16. EXPERTS: See EVIDENCE
EYEWITNESS IDENTIFICATIONS -- See also IDENTIFICATION
Decision whether to admit expert testimony on eyewitness reliability: abuse of discretion
United States v. Jackson, 50 F.3d 1335, 1340 (5th Cir. 1995), citing United States v.
Moore, 786 F.2d 1308, 1312 (5th Cir. 1986)
FEDERAL RULES OF CRIMINAL PROCEDURE:
Interpretation of the Rules: de novo
United States v. Navarro, 169 F.3d 228, 235 (5th Cir. 1999), citing United States v.
Dean, 100 F.3d 19, 20 (5th Cir. 1996)
FELON IN POSSESSION:
Whether civil rights have been sufficiently restored to preclude prosecution under 18
U.S.C. § 922(g)(1): de novo
United States v. Dupaquier, 74 F.3d 615, 617 (5th Cir.1996), citing United States v.
Thomas, 991 F.2d 206, 209 (5th Cir. 1993)
FINE:
Determination of ability to pay a fine: clearly erroneous
United States v. Thomas, 13 F.3d 151, 153 & n.8 (5th Cir. 1994), citing
United States v. Favorito, 5 F.3d 1338 (9th Cir. 1993)
FORFEITURE:
Findings of fact: clearly erroneous
Question of whether those facts constitute legally proper forfeiture: de novo
United States v. Marmolejo, 89 F.3d 1185, 1197 (5th Cir. 1996) (citing United States
v. 1977 Porsche Carrera 911, 946 F.2d 30, 33 (5th Cir. 1991)), aff’d sub nom. Salinas
v. United States, 522 U.S. 52 (1997); see also United States v. Bankston, 182 F.3d
296, 318 (5th Cir. 1999) (citing Marmolejo)
16
17. Probable cause:
Findings of fact: clearly erroneous
Whether facts are legally sufficient to constitute probable cause: de novo
United States v. $9,041,598.68, 163 F.3d 238, 246 (5th Cir. 1998), citing
United States v. 1988 Oldsmobile Supreme, 983 F.2d 670, 674 (5th Cir.
1993)
“The issue of standing [to contest forfeiture] is one of law, and review is plenary.”
United States v. $9,041,598.68, 163 F.3d 238, 245 (5th Cir. 1998), citing United
States v. $38,750 in U.S. Currency, 950 F.2d 1108, 111 (5th Cir. 1992)
GUILTY PLEA:
District court’s decision whether to accept a plea as factually supported: clearly erroneous
United States v. Cano-Guel, 167 F.3d 900, 906 (5th Cir. 1999), citing United States
v. Carter, 117 F.3d 262, 264 (5th Cir. 1997)
Rule 11 (Federal Rule of Criminal Procedure 11) challenges:
Generally: whether the requirements of Rule 11 were satisfied is a conclusion of
law and is therefore reviewable de novo
United States v. Scott, 987 F.2d 261, 264 (5th Cir. 1993); accord United
States v. Cuevas-Andrade, 232 F.3d 440, 443 (5th Cir. 2000) (citing Scott)
District court's finding that there is a factual basis for the plea, as required by Rule
11(f): clearly erroneous
United States v. Carter, 117 F.3d 262, 264 (5th Cir. 1997) (citations omitted);
United States v. Adams, 961 F.2d 505, 509 (5th Cir. 1992) (citation omitted)
Validity of plea: de novo
United States v. Hernandez, 234 F.3d 252, 254 (5th Cir. 2000), citing United States
v. Amaya, 111 F.3d 386, 388 (5th Cir. 1997)
Voluntariness of plea: de novo
17
18. United States v. Reyna, 130 F.3d 104, 111 (5th Cir. 1997) (citing Amaya and
Howard, infra); United States v. Amaya, 111 F.3d 386, 388 (5th Cir. 1997) (citing
Howard, infra); United States v. Howard, 991 F.2d 195, 199 (5th Cir. 1993), citing
Marshall v. Lonberger, 459 U.S. 422, 431 (1983)
Failure to object results in plain error review. United States v. Vonn, 535 U.S. 55,
59 (2002)
Denial of motion to withdraw guilty plea: abuse of discretion
United States v. Grant, 117 F.3d 788, 789 (5th Cir. 1997) (citing Henderson); United
States v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995), citing United States v.
Bounds, 943 F.2d 541, 543 (5th Cir. 1991)
HABEAS CORPUS (including § 2255):
GENERALLY:
In reviewing a district court’s grant of habeas relief, we review factual
findings for clear error and issues of law de novo. See Dison v. Whitley, 20
F.3d 185, 186 (5th Cir. 1994). Mixed questions of law and fact are reviewed
de novo by independently applying the law to the facts found by the district
court, unless those factual determinations are clearly erroneous. See Gray v.
Lynn, 6 F.3d 265, 266 (5th Cir. 1993).
Lauti v. Johnson, 102 F.3d 166, 168-69 (5th Cir. 1996)
Review of state court findings must show an “unreasonable determination of the facts
in light of the evidence presented at the state court proceedings.” Miller-El v. Dretke,
545 U.S. 231, 240 (2005) (citing 28 U.S.C.§ 2254(d)(2)).
Certificate of appealability should be issued if “reasonable jurists would find the
district court’s assessment of the constitutionality clearly debatable or wrong.”
Miller-El v. Cockrell, 537 U.S. 322, 338 (2003)
Denial of motion to abate/hold in abeyance: abuse of discretion
Brewer v. Johnson, 139 F.3d 491, 492 (5th Cir. 1998) (citations omitted)
Dismissal for abuse of the writ: abuse of discretion
Dupuy v. Cain, 201 F.3d 582, 585 (5th Cir. 2000) (No. 99-30146), citing Rodriguez
v. Johnson, 104 F.3d 694, 696 (5th Cir. 1997)
18
19. AEDPA:
Applicability of AEDPA: de novo
Graham v. Johnson, 168 F.3d 762, 772 (5th Cir. 1999), citing Kiser v.
Johnson, 163 F.3d 326, 326-27 (5th Cir. 1999)
District court’s decision to decline to invoke equitable tolling: abuse of discretion
Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (citation and footnote
with further citations omitted)
Denial of equitable tolling (where not based on error of law): abuse of discretion
Molo v. Johnson, 207 F.3d 773, 774 (5th Cir. 2000) (footnote with citations
omitted)
Limitations:
Whether a petition is barred by the AEDPA statute of limitations: de novo
Foreman v. Dretke, 343 F.3d 336, 2004 WL 1900408, *1 (5th Cir.
Aug. 27, 2004) (citing Giesberg v. Cockrell, 288 F.3d 268, 270 (5th
Cir. 2002); Kiser v. Johnson, 163 F.3d 326, 327 (5th Cir. 1999)
(citation omitted)
Whether AEDPA’s statute of limitations is jurisdictional or an affirmative
defense: de novo
Kiser v. Johnson, 163 F.3d 326, 327 (5th Cir. 1999) (citation omitted)
Denial of motion to alter or amend (Fed. R. Civ. P. 59(e)): abuse of discretion
Martinez v. Johnson, 104 F.3d 769, 771 (5th Cir. 1997) (footnote with citations
omitted)
Denial of leave to amend petition after answer is filed: abuse of discretion
Briddle v. Scott, 63 F.3d 364, 379 (5th Cir. 1995) (§ 2254 petition)
United States v. Riascos, 76 F.3d 93, 94 (5th Cir. 1996) (citation omitted) (§ 2255
motion)
19
20. United States v. Guerra, 94 F.3d 989, 993 (5th Cir. 1996) (citation omitted)
(allowance of leave for government to amend answer to § 2255 petition)
Coerced verdict (Allen charge issue): de novo
Montoya v. Scott, 65 F.3d 405, 408 (5th Cir. 1995), citing Boyd v. Scott, 45 F.3d
876, 882 (5th Cir. 1994)
Competency: mixed question of law and fact
Whether a petitioner suffers from a mental disorder or incapacitating mental
illness: question of fact, reviewed under clearly erroneous standard
Ultimate competency finding: reviewing court takes a “hard look” (quasi-de novo?)
Washington v. Johnson, 90 F.3d 945, 951 (5th Cir. 1996) (citations omitted)
Whether admission of hearsay evidence violated a defendant’s Sixth Amendment right of
confrontation: de novo
Gochicoa v. Johnson, 118 F.3d 440, 445 (5th Cir. 1997) (citations omitted)
Denial of review based upon state procedural ground: de novo
Stokes v. Anderson, 123 F.3d 858, 859 (5th Cir. 1997) (citation omitted)
Discovery requests under Rule 6: abuse of discretion; "however, a court's blanket denial
of discovery is an abuse of discretion if discovery is 'indispensable to a fair, rounded,
development of the material facts.'"
East v. Scott, 55 F.3d 996, 1001 (5th Cir. 1995)
Dismissal under Fed. R. Civ. P. 41(b): abuse of discretion
Martinez v. Johnson, 104 F.3d 769, 771 (5th Cir. 1997) (footnote with citation
omitted)
Dismissal of § 2241 petition on the pleadings: de novo
Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000), citing Venegas v. Henman, 126
F.3d 760, 761 (5th Cir. 1997)
Dismissal of § 2254 petition as frivolous under 28 U.S.C. § 1915(d): abuse of discretion
20
21. McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir. 1998), citing Hamilton v.
Lyons, 74 F.3d 99, 102 (5th Cir. 1996)
Dismissal based on presence of unexhausted state claims: abuse of discretion
Brewer v. Johnson, 139 F.3d 491, 492 (5th Cir. 1998) (citations omitted)
Double jeopardy claims: de novo
Shute v. State of Texas, 117 F.3d 233, 238 (5th Cir. 1997) (citations omitted)
Equitable tolling -- See topic heading of same name under AEDPA, supra
Denial of § 2255 without holding evidentiary hearing: abuse of discretion
United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998), citing United States
v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992) (per curiam)
Findings of fact in a § 2241 (habeas corpus) petition: clearly erroneous
Leggett v. Fleming, 380 F.3d 232, 234 (5th Cir. 2004); Venegas v. Henman, 126 F.3d
760, 761 (5th Cir. 1997)
Findings of fact in a § 2254 petition: clearly erroneous
Amos v. Scott, 61 F.3d 333, 337 & n.7 (5th Cir. 1995) (citation omitted)
Findings of fact in a § 2255 motion: clearly erroneous
United States v. Samuels, 59 F.3d 526, 528 (5th Cir. 1995) (citations omitted)
Dismissal of § 2254 petition as frivolous under 28 U.S.C. § 1915(d): abuse of discretion
McDonald v. Johnson, 139 F.3d 1056, 1059 (5th Cir. 1998), citing Hamilton v.
Lyons, 74 F.3d 99, 102 (5th Cir. 1996)
District court’s harmless error determination: de novo
Johnson v. Cain, 215 F.3d 489, 495 (5th Cir. 2000), citing Shaw v. Collins, 5 F.3d
128, 132 (5th Cir. 1994)
Decision whether to hold a hearing on a § 2255 motion: abuse of discretion
21
22. United States v. Samuels, 59 F.3d 526, 530 & n.17 (5th Cir. 1995), citing United
States v. Bartholomew, 974 F.2d 39, 41 (5th Cir. 1992)
"Ineffective assistance of counsel is a mixed question of law and fact which we review de
novo."
Johnson v. Scott, 68 F.3d 106, 109 (5th Cir. 1995) (citations omitted); see also Green
v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997), citing Salazar v. Johnson, 96 F.3d
789, 791 (5th Cir. 1996) (§ 2254)
ALSO
United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996), citing United States v.
Faubion, 19 F.3d 226, 228 (5th Cir. 1994); United States v. Williamson, 183 F.3d
458, 462 (5th Cir. 1999), citing United States v. Flores-Ochoa, 139 F.3d 1022, 1024
(5th Cir. 1998) (§ 2255)
BUT: “[Although] the district court’s conclusion is reviewed de novo . . . its
underlying factual findings are reviewed for clear error.”
Jones v. Jones, 163 F.3d 285, 299 (5th Cir. 1998) (citations omitted)
See generally Strickland v. Washington, 466 U.S. 668, 687 (1984)(petitioner must
show counsel’s performance was deficient and prejudice)
Denial of investigative funds under 21 U.S.C. § 848(q): abuse of discretion
Riley v. Dretke, 362 F.3d 302, 305 (5th Cir. 2004); Clark v. Johnson, 202 F.3d 760,
769 (5th Cir. 2000)
Jurisdiction: “We review de novo the district court’s determination of its jurisdiction.”
Wadsworth v. Johnson, 235 F.3d 959, 961 (5th Cir. 2000) (citations omitted)
Jury instructions:
In evaluating a constitutional challenge to a jury instruction, a reviewing court must "inquire
'whether there is a reasonable likelihood that the jury has applied the challenged instruction
in a way' that violates the Constitution." Estelle v. McGuire, 502 U.S. 62, 72 (1991), quoting
Boyde v. California, 494 U.S. 370, 380 (1990); see also Estelle v. McGuire, id. at 72 n.4
(expressly disapproving seemingly contradictory standards of review in previous cases). The
court must determine "whether the ailing instruction by itself so infected the entire trial that
the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147 (1973).
22
23. Issues of law:
(§ 2241/habeas corpus): de novo
Leggett v. Fleming, 380 F.3d 232, 234 (5th Cir. 2004); Venegas v. Henman, 126 F.3d
760, 761 (5th Cir. 1997)
(§ 2254): de novo
Clark v. Scott, 70 F.3d 386, 388 (5th Cir. 1995), citing Barnard v. Collins, 958 F.2d
634, 636 (5th Cir. 1992); Amos v. Scott, 61 F.3d 333, 338 & n.7 (5th Cir. 1995)
(citation omitted)
(§ 2255): de novo
United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996), citing United States v.
Seyfert, 67 F.3d 544, 546 (5th Cir. 1995)
Limitations:
Whether a petition is barred by the AEDPA statute of limitations: de novo
Kiser v. Johnson, 163 F.3d 326, 327 (5th Cir. 1999) (citation omitted)
Whether AEDPA’s statute of limitations is jurisdictional or an affirmative defense:
de novo
Kiser v. Johnson, 163 F.3d 326, 327 (5th Cir. 1999) (citation omitted)
Due process claim of knowing use of perjured testimony:
Underlying facts: clear error
Conclusions from the facts: de novo
Fairman v. Anderson, 188 F.3d 635, 640 (5th Cir. 1999) (citation omitted)
Prison discipline:
Whether there was any evidence to support the prison disciplinary board’s guilty
finding: de novo
Hudson v. Johnson, 242 F.3d 534, 535 (5th Cir. 2001) (citation omitted)
23
24. District court’s determination respecting procedural bar: de novo
Johnson v. Cain, 215 F.3d 489, 494 (5th Cir. 2000), quoting and citing Boyd v. Scott,
45 F.3d 876, 879 (5th Cir. 1994)
Procedural default (district court's denial of federal habeas corpus on state procedural
ground): de novo
Stokes v. Anderson, 123 F.3d 858, 859 (5th Cir. 1997) (citation omitted); Amos v.
Scott, 61 F.3d 333, 338 & n.8 (5th Cir. 1995) (citation omitted)
Adequacy of state procedural rule (whether state procedural rule is applied regularly
and evenhandedly enough to constitute procedural default): de novo
Reed v. Scott, 70 F.3d 844, 846 & n.12 (5th Cir. 1995), citing Amos v. Scott,
61 F.3d 333 (5th Cir. 1995) (citation omitted)
Grant of review of claims defaulted in state court pursuant to an independent and
adequate state rule: de novo
Fairman v. Anderson, 188 F.3d 635, 640 (5th Cir. 1999) (citation omitted)
Denial of motion for reconsideration: abuse of discretion
Briddle v. Scott, 63 F.3d 364, 379 (5th Cir. 1995)
Denial of motion for relief from judgment under Rule 60(b): abuse of discretion
Behringer v. Johnson, 75 F.3d 189, 190 (5th Cir. 1996), citing Fackelman v. Bell,
564 F.2d 734, 736 (5th Cir. 1977)
Stay of execution:
Refusal to grant stay: abuse of discretion
Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998) (citations omitted); see
also Lackey v. Scott, 52 F.3d 98, 100 (5th Cir. 1995), citing Delo v. Stokes,
495 U.S. 320, 322 (1990)
Stay of execution under 28 U.S.C. § 2251: abuse of discretion
Lackey v. Scott, 52 F.3d 98, 100 (5th Cir. 1995), citing Delo v. Stokes, 495
U.S. 320, 322 (1990)
24
25. Successive petitions:
Dismissal of second or subsequent petition (§ 2254): abuse of discretion
Rodriguez v. Johnson, 104 F.3d 694, 696 (5th Cir. 1997) (citations omitted);
James v. Cain, 56 F.3d 662, 665 (5th Cir. 1995) (citations omitted)
Denial of successive § 2255 motion: abuse of discretion
United States v. Espinoza, 82 F.3d 640, 642 (5th Cir. 1996), citing United
States v. Flores, 981 F.2d 231, 234 (5th Cir. 1993)
Summary judgment:
§ 2255: de novo
United States v. Kimler, 167 F.3d 889, 892 (5th Cir. 1999), citing Kopycinski
v. Scott, 64 F.3d 223, 225 (5th Cir. 1995)
§ 2254: de novo
Fisher v. State of Texas, 169 F.3d 295, 299 (5th Cir. 1999), citing Kopycinski
v. Scott, 64 F.3d 223, 225 (5th Cir. 1995)
SEE ALSO Teague v. Scott, 60 F.3d 1167, 1170 (5th Cir. 1995) (citation
omitted) (where no state court findings entitled to presumption of correctness,
grant of summary judgment reviewed de novo)
Whether judicial decision announces “new rule” under Teague v. Lane, thus prohibiting
retroactive application to cases already final at time of announcement of new rule: de novo
United States v. Shunk, 113 F.3d 31, 34 (5th Cir. 1997) (§ 2255)
Dismissal based on presence of unexhausted state claims: abuse of discretion
Brewer v. Johnson, 139 F.3d 491, 492 (5th Cir. 1998) (citations omitted)
HEARING -- See EVIDENTIARY HEARING
HYDE AMENDMENT:
Decision whether or not to award attorney fees under the Hyde Amendment: abuse
25
26. of discretion
Legal determinations underlying the district court’s decision: de novo
United States v. Truesdale, 211 F.3d 898, 905-06 (5th Cir. 2000)
IDENTIFICATION:
Whether identification evidence and the fruits therefrom are admissible at trial (i.e., whether
a defendant’s Fifth Amendment rights are violated by the introduction of impermissibly
suggestive and inherently unreliable photographic identification evidence): de novo
Underlying factual findings: clearly erroneous
United States v. Honer, 225 F.3d 549, 552 (5th Cir. 2000) (citations omitted); see
also United States v. Hickman, 151 F.3d 446, 459 (5th Cir. 1998) (citing United
States v. Fletcher, 121 F.3d 187, 194 (5th Cir. 1997)), vacated on other grounds, 165
F.3d 1020 (1999) (en banc)
IMPEACHMENT:
“Whether disclosures of impeachment information violate any constitutional or statutory
right of the defendant is determined as a question of law. This court reviews questions of
law de novo.”
United States v. Martinez, 151 F.3d 384, 390 (5th Cir. 1998) (citations omitted)
INDICTMENT:
Sufficiency of indictment (where objected to in district court): de novo
United States v. Cabrera-Teran, 168 F.3d 141, 143 (5th Cir. 1999), citing United
States v. Fitzgerald, 89 F.3d 218, 221 (5th Cir. 1996); United States v. Asibor, 109
F.3d 1023, 1037 (5th Cir. 1997), citing United States v. Green, 964 F.2d 365, 372,
(5th Cir. 1992); United States v. Hord, 6 F.3d 276, 283 (5th Cir. 1993), citing United
States v. Aguilar, 967 F.2d 111, 112 (5th Cir. 1992)
See also United States v. Kay, 359 F.3d 738, 742 (5th Cir. 2004) (“We review de
novo . . . ‘whether an indictment sufficiently alleges the elements of an offense.’”)
(citing United States v. Santos-Riviera, 183 F.3d 367, 369 (5th Cir. 1999)).
Sufficiency of indictment (where first raised on appeal): indictment to be read with
26
27. "maximum liberality"
United States v. Cabrera-Teran, 168 F.3d 141, 143 (5th Cir. 1999), citing United
States v. Fitzgerald, 89 F.3d 218, 221 (5th Cir. 1996); United States v. Rivera, 879
F.2d 1247, 1251 n.3 (5th Cir. 1989). Failure to object results in plain error review.
United States v. Cotton, 535 U.S. 625 (2002)
Denial of motion to strike language from indictment: abuse of discretion
United States v. Graves, 5 F.3d 1546, 1550 (5th Cir. 1993), citing United States v.
Bullock, 451 F.2d 884, 888 (5th Cir. 1971)
INEFFECTIVE ASSISTANCE OF COUNSEL:
"Ineffective assistance of counsel is a mixed question of law and fact which we review de
novo."
Johnson v. Scott, 68 F.3d 106, 109 (5th Cir. 1995) (citations omitted) (§ 2254)
ALSO
United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996), citing United States v.
Faubion, 19 F.3d 226, 228 (5th Cir. 1994); United States v. Williamson, 183 F.3d
458, 462 (5th Cir. 1999), citing United States v. Flores-Ochoa, 139 F.3d 1022, 1024
(5th Cir. 1998) (§ 2255)
BUT: “[Although] the district court’s conclusion is reviewed de novo . . . its underlying
factual findings are reviewed for clear error.”
Jones v. Jones, 163 F.3d 285, 299 (5th Cir. 1998) (citations omitted)
See generally Strickland v. Washington, 466 U.S. 668, 687 (1984)(deficient
performance and prejudice)
INFORMANTS:
Grant or denial of disclosure of an informant: abuse of discretion
United States v. Thomas, 348 F.3d 78, 85 (5th Cir. 2003) (holding standard is abuse
of discretion) (citing United States v. Wilson, 77 F.3d 105, 111 (5th Cir. 1996));
United States v. Wilson, 77 F.3d 105, 111 (5th Cir. 1996) (citing United States v.
Evans, 941 F.2d 267, 272 (5th Cir. 1991))
27
28. INSANITY/ INCOMPETENCY:
Competency: mixed question of law and fact
Whether a petitioner suffers from a mental disorder or incapacitating mental
illness: question of fact, reviewed under clearly erroneous standard
Ultimate competency finding: reviewing court takes a “hard look” (quasi-de novo?)
Washington v. Johnson, 90 F.3d 945, 951 (5th Cir. 1996) (citations omitted)
Whether district court should sua sponte order competency hearing: abuse of discretion
Jury instruction:
Whether defendant has produced sufficient evidence to entitle him to an insanity
instruction: de novo
United States v. Dixon, 185 F.3d 393, 403 (5th Cir. 1999)
Existence of "reasonable cause" to put court on notice that defendant might be mentally
incompetent: abuse of discretion
United States v. Davis, 61 F.3d 291, 303-304 (5th Cir. 1995) (citations omitted)
Whether insanity acquittee should be released pursuant to 18 U.S.C. § 4243: clearly
erroneous
United States v. Jackson, 19 F.2d 1003, 1006 (5th Cir. 1994)
INTERPRETERS:
Appointment of interpreters: abuse of discretion
United States v. Bell, 367 F.3d 452, 463 (5th Cir. 2004) ( “We review the decision
to appoint an interpreter for abuse of discretion.”) (citing United States v. Ball, 988
F.2d 7, 9 (5th Cir. 1993)
INVENTORY SEARCH:
Whether search is a valid inventory search: de novo
United States v. Como, 53 F.3d 87, 91 (5th Cir. 1995), quoting and citing United
States v. Gallo, 927 F.2d 815, 819 (5th Cir. 1991)
28
29. JENCKS ACT:
“We review a district court’s decisions regarding discovery under the Jencks Act for clear
error.”
United States v. Hodgkiss, 116 F.3d 116, 117 (5th Cir. 1997) (citing United States
v. Medel, 592 F.2d 1305, 1316 (5th Cir. 1979)), judgment vacated on other grounds
sub nom. Hodgkiss v. United States, 522 U.S. 1012 (1997); see also United States
v. Ramirez, 174 F.3d 584, 587 (5th Cir. 1999), citing United States v. Martinez, 87
F.3d 731, 734 (5th Cir. 1996)
Whether written materials constitute a "statement" under the Jencks Act: clearly erroneous
United States v. Fragoso, 978 F.2d 896, 899 (5th Cir. 1992)
BUT where a district court's conclusion that written materials are not Jencks Act
statements is based upon an error of law, that conclusion is not subject to clearly
erroneous review, and remand is required.
United States v. Welch, 810 F.2d 485, 490 (5th Cir. 1987)
AND “The trial court’s finding will constitute clear error where such finding either rests
upon an incorrect rule of law or is inconsistent with the facts upon which it purports
to rest.”
United States v. Ramirez, 174 F.3d 584, 587 (5th Cir. 1999) (internal quotation
marks omitted), quoting United States v. Martinez, 87 F.3d 731, 734 (5th Cir. 1996)
See also United States v. Martinez, 151 F.3d 384, 390 (5th Cir. 1998) (“Whether disclosures
of impeachment information violate any constitutional or statutory right of the defendant is
determined as a question of law. This court reviews questions of law de novo.”) (citations
omitted) [quote made in context of Jencks Act challenge]
JUDGMENT OF ACQUITTAL:
Denial of motion for judgment of acquittal: de novo
United States v. Muñoz, 150 F.3d 401, 416 (5th Cir. 1998), citing United States v.
Greer, 137 F.3d 247, 249 (5th Cir. 1998); United States v. Rasco, 123 F.3d 222, 228
(5th Cir. 1997), citing United States v. Castaneda-Cantu, 20 F.3d 1325, 1330 (5th
Cir. 1994)
“We review de novo the district court’s legal conclusion that it had no jurisdiction to
29
30. entertain [defendant’s] third posttrial motion for judgment of acquittal.”
United States v. Mulderig, 120 F.3d 534, 544 (5th Cir. 1997) (citation omitted)
JURISDICTION:
Challenges to a district court’s jurisdiction: de novo
United States v. Bredimus, 352 F.3d 200, 203 (5th Cir. 2003), citing United States
v. Sims Bros. Const., Inc., 277 F.3d 734, 741 (5th Cir. 2001)
Dismissal for lack of subject matter jurisdiction: de novo
United States v. McGill, 74 F.3d 64, 65 (5th Cir. 1996), citing Matter of Bradley, 989
F.2d 802, 804 (5th Cir. 1993)
Jurisdiction generally: “We review the issue of the district court’s jurisdiction de novo.”
United States v. Lynch, 114 F.3d 61, 63 (5th Cir. 1997), citing In re United States
Abatement Corp., 39 F.3d 563, 566 (5th Cir. 1994)
Legal determinations: “We review legal determination regarding the subject matter
jurisdiction of a district court de novo.”
United States v. Urrabazo, 234 F.3d 904, 906 (5th Cir. 2000) (citing United States
v. Alvarado, 201 F.3d 379, 381 (5th Cir. 2000)); see also United States v. Fernandez,
379 F.3d 270, 273 (5th Cir. 2004) (“We review the district court’s legal conclusions
regarding jurisdiction de novo.”)
Jurisdiction to resentence: de novo
United States v. Gonzalez, 163 F.3d 255, 263 (5th Cir. 1998), citing United States
v. Bridges, 116 F.3d 1110, 1112 (5th Cir. 1997)
Subject matter jurisdiction: de novo
In re Grand Jury Proceedings, 115 F.3d 1240, 1243 (5th Cir. 1997) (citation omitted);
United States v. Teran, 98 F.3d 831, 833-34 (5th Cir. 1996), citing In re United
States Abatement Corp., 39 F.3d 563, 566 (5th Cir. 1994)
JURY:
Empanelment of anonymous jury: abuse of discretion
30
31. United States v. Krout, 66 F.3d 1420, 1426 (5th Cir. 1995)
Decisions regarding jury bias: abuse of discretion
United States v. Webster, 162 F.3d 308, 342 (5th Cir. 1998), citing United States v.
Hall, 152 F.3d 381, 407 (5th Cir. 1998); United States v. Wilson, 116 F.3d 1066,
1068 (5th Cir. 1997)
Denial of challenge for cause (conclusion that prospective jurors could perform their duties
as jurors: manifest error
United States v. Scott, 159 F.3d 916, 925 (5th Cir. 1998), citing United States v.
Dozier, 672 F.2d 531, 547 (5th Cir. 1982)
Eleven-member jury:
“We review for abuse of discretion a district court’s decision to permit an eleven-
member jury to return a verdict after the district court has dismissed the twelfth juror
for just cause.”
United States v. Cantu, 167 F.3d 198, 206 (5th Cir. 1999), citing Fed. R.
Crim. P. 23(b) and United States v. O’Brien, 898 F.2d 983, 986 (5th Cir.
1990)
Excusal of juror: abuse of discretion
United States v. Speer, 30 F.3d 605, 610-11 (5th Cir. 1994); United States v.
Huntress, 956 F.2d 1309, 1312 (5th Cir. 1992)
Extrinsic influences:
Conclusion/determination that jury was not improperly tainted by extrinsic
evidence: clearly erroneous
United States v. Cantu, 167 F.3d 198, 201 (5th Cir. 1999) (citation omitted)
Evidentiary hearings:
No hearing held: decision not to hold a hearing at all is reviewed for abuse
of (broad) discretion.
United States v. Chiantese, 582 F.2d 974, 980 (5th Cir. 1978), cited
in United States v. Ramos, 71 F.3d 1150, 1153 & n.5 (5th Cir. 1995)
31
32. Limited hearing held/scope of hearing limited: reviewed for abuse of
(broad) discretion (Chiantese standard)
United States v. Ramos, 71 F.3d 1150, 1153-54 (5th Cir. 1995)
Handling of such complaints generally: abuse of discretion
United States v. Sylvester, 143 F.3d 923, 931 (5th Cir. 1998), citing United
States v. Sotelo, 97 F.3d 782, 794 (5th Cir. 1996)
SEE ALSO United States v. Cantu, 167 F.3d 198, 201 (5th Cir. 1999)
(district court’s choice of methods to investigate possibility of extrinsic
taint reviewed for abuse of discretion) (citations omitted)
“Fair cross section”:
Trial court’s factual determination that there was no systematic exclusion of minority
members from venire: clearly erroneous
United States v. Sotelo, 97 F.3d 782, 790-91 (5th Cir. 1996), citing United
States v. McKinney, 53 F.3d 664 (5th Cir. 1995)
Decision whether or not to dismiss a juror for lack of impartiality: clear abuse of discretion
United States v. Medina, 161 F.3d 867, 871 (5th Cir. 1998), citing United States v.
Graves, 5 F.3d 1546, 1554 (5th Cir. 1993)
Denial of motion for mistrial based on allegation of improper extrajudicial conduct by
jurors: abuse of discretion
United States v. Denman, 100 F.3d 399, 405 (5th Cir. 1996)
Refusal to permit post-trial interviews of jurors: abuse of discretion
United States v. Sotelo, 97 F.3d 782, 794 (5th Cir. 1996) (involving N.D. Tex. Loc.
R. 8.2(e); citations omitted)
Denial of motion for mistrial based upon jurors’ failure to disclose relevant information
during voir dire: abuse of discretion
United States v. Brown, 102 F.3d 1390, 1398 (5th Cir. 1996) (citation omitted)
Juror misconduct:
32
33. Decision whether or not to hold evidentiary hearing: abuse of discretion
Denial of new trial based upon juror misconduct: abuse of discretion
Procedures used to investigate allegations of juror misconduct: abuse of discretion
United States v. Jobe, 101 F.3d 1046, 1057-58 (5th Cir. 1996) (citations
omitted)
Motion to strike jury panel:
Determinations of fact: clear error
Determinations of law: de novo
United States v. Alix, 86 F.3d 429, 434 (5th Cir. 1996), citing United States
v. McKinney, 53 F.3d 664, 670-71 (5th Cir. 1995)
JURY INSTRUCTIONS:
Overall test: Court reviews to determine whether the court's charge, as a whole, is a correct
statement of the law and whether it clearly instructs jurors as to the principles of law
applicable to the factual issues confronting them.
United States v. Laury, 985 F.2d 1293, 1300 (5th Cir. 1993)
Standard of review for alleged errors in instructions: abuse of discretion
United States v. Coleman, 997 F.2d 1101, 1105 (5th Cir. 1993), citing United
States v. Chaney, 964 F.2d 437, 444 (5th Cir. 1992)
Refusal to give a requested instruction: abuse of discretion
United States v. Thomas, 12 F.3d 1350, 1365 (5th Cir. 1994); United States
v. Sellers, 926 F.2d 410, 414 (5th Cir. 1991)
Giving of Allen charge to deadlocked jury: abuse of discretion
United States v. Rivas, 99 F.3d 170, 175 (5th Cir. 1996), citing United States v.
Pace, 10 F.3d 1106, 1125 (5th Cir. 1993)
Elements of crime:
33
34. “[W]e review de novo whether the jury instruction misstated an element of the
statutory crime.”
United States v. Morales-Palacios, 369 F.3d 442, 445 (5th Cir. 2004) (citing
United States v. Ho, 311 F.3d 589, 605 (5th Cir. 2002))
Whether district court directed a verdict on an element, de novo. United States v.
Simkanian, 420 F.3d 397, 403-04 (5th Cir. 2003)
Entrapment:
Generally: “We review de novo a trial court’s refusal to instruct the jury on the
defense of entrapment.”
United States v. Gutierrez, 343 F.3d 415, 419 (5th Cir. 2003) (citing United
States v. Ogle, 328 F.3d 182, 185 (5th Cir. 2003))
Whether evidence is insufficient to support a jury finding that a defendant was not
entrapped:
“‘When a jury, which was fully charged on entrapment, rejects the
defendant’s entrapment defense, the applicable standard of review is the same
as that which applies to sufficiency of the evidence.’”
United States v. Thompson, 130 F.3d 676, 688 (5th Cir. 1997),
quoting United States v. Rodriguez, 43 F.3d 117, 126 (5th Cir. 1995)
SEE ALSO United States v. Gutierrez, 343 F.3d 415, 419 (5th Cir.
2003) (“[W]hen a defendant’s properly requested entrapment
instruction is undergirded by evidence sufficient to support a
reasonable jury’s finding of entrapment, the district court errs
reversibly by not adequately charging the jury on the theory of
entrapment.”) (citing United States v. Ogle, 328 F.3d 182, 185 (5th
Cir. 2003) (internal quotation marks and further citation omitted).
Whether defendant has produced sufficient evidence to entitle him to an insanity
instruction: de novo
United States v. Dixon, 185 F.3d 393, 403 (5th Cir. 1999)
Refusal to give a lesser included offense instruction: two-prong test:
34
35. Whether elements of lesser included offense are a subset of the greater offense: de
novo
Whether jury could rationally find lesser offense and acquit on the greater: abuse of
discretion
United States v. Avants, 367 F.3d 433, 450 (5th Cir. 2004); United States v.
Estrada-Fernandez, 150 F.3d 491, 494 (5th Cir. 1998); United States v.
Harrison, 55 F.3d 163, 167 (5th Cir. 1995)
Refusal to give requested specific unanimity instruction: abuse of discretion
United States v. Correa-Ventura, 6 F.3d 1070, 1076 (5th Cir. 1993); United
States v. Sasser, 971 F.2d 470, 477 (10th Cir. 1992); United States v. Beros,
833 F.2d 455, 458 n.3 (3rd Cir. 1987)
“Whether the evidence is sufficient to justify the giving of a particular charge is a ‘fact-
intensive’ question and thus is reviewed under the clearly erroneous standard.”
United States v. Hull, 160 F.3d 265, 271 (5th Cir. 1998), citing United States v. Lara-
Velasquez, 919 F.2d 946, 952 (5th Cir. 1990)
Refusal to give a requested “theory of defense” instruction: de novo
United States v. Bradfield, 113 F.3d 515, 520 (5th Cir. 1997), citing United States
v. Gentry, 839 F.2d 1065, 1071 (5th Cir. 1988)
SEE ALSO United States v. Gutierrez, 343 F.3d 415, 419 (5th Cir. 2003) (“[W]here
there is an evidentiary foundation for a theory of defense that, if credited by the jury,
would be legally sufficient to render the accused innocent, it is reversible error to
refuse to charge on that theory.”) (internal quotation marks and citation omitted).
JURY SELECTION AND SERVICE ACT:
Decision to excuse an individual juror under the Act: abuse of discretion
Interpretation of the Act’s language: de novo
United States v. Hemmingson, 157 F.3d 347, 358 (5th Cir. 1998), citing United
States v. Contreras, 108 F.3d 1255, 1265 (10th Cir. 1997)
JUVENILES:
35
36. Certification of juveniles for federal prosecution under 18 U.S.C. § 5032: de novo
United States v. Male Juvenile, 148 F.3d 468, 469 (5th Cir. 1998); see also United
States v. Sealed Juvenile 1, 225 F.3d 507, 508 (5th Cir. 2000) (citing Male Juvenile)
NOTE: “The need certification under 18 U.S.C. § 5032 is a jurisdictional
requirement; therefore, a challenge to the legal sufficiency of the certification filed
in the present case can be raised at any time.”
United States v. Sealed Juvenile 1, 225 F.3d 507, 508 (5th Cir. 2000) (citing
Male Juvenile)
Interpretation of the Federal Juvenile Delinquency Act (18 U.S.C. § 5031 et seq.): de novo
United States v. Wilson, 116 F.3d 1066, 1093 (5th Cir. 1997), on reh’g en banc on
other grounds United States v. Brown, 161 F.3d 256 (5th Cir. 1998) (en banc)
Decision whether to transfer a juvenile for adult prosecution pursuant to 18 U.S.C. § 5032:
abuse of discretion, provided that court employs and makes findings as to the six criteria
outlined in § 5032
United States v. Three Male Juveniles, 49 F.3d 1058, 1060 (5th Cir. 1995), citing
United States v. Bilbo, 19 F.3d 912, 915 (5th Cir. 1994)
Speedy trial (18 U.S.C. § 5036):
Factual findings: clearly erroneous
Conclusions of law: de novo
United States v. Sealed Juvenile 1, 192 F.3d 488, 490 (5th Cir. 1999)
LAW:
Questions of law: de novo
United States v. Dupaquier, 74 F.3d 615, 617 (5th Cir.1996), citing United States v.
Thomas, 991 F.2d 206, 209 (5th Cir.1993)
LAW OF THE CASE:
“Whether the law of the case doctrine foreclosed the district court’s exercise of discretion
on remand and the interpretation of this court’s remand order present questions of law that
36
37. this court reviews de novo.”
United States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004) (citations omitted).
LIMITATIONS: See STATUTE OF LIMITATIONS
MENS REA:
Whether a statute contains a particular mens rea requirement: de novo
United States v. Privett, 68 F.3d 101, 104 (5th Cir. 1995)
“The question of to which elements of the offenses the word ‘knowingly’ applies is a
question of pure statutory construction which we review de novo.”
United States v. Ahmad, 101 F.3d 386, 389 (5th Cir. 1996), citing United States v.
Snyder, 930 F.2d 1090, 1093 (5th Cir. 1991)
MISTRIAL:
Grant or denial of a mistrial generally: abuse of discretion
United States v. Willis, 6 F.3d 257, 263 (5th Cir. 1993), citing United States v.
Coveney, 995 F.2d 578, 584 (5th Cir. 1993)
Denial of motion for mistrial based on allegation of improper extrajudicial conduct by
jurors: abuse of discretion
United States v. Denman, 100 F.3d 399, 405 (5th Cir. 1996)
Denial of motion for mistrial based upon jurors’ failure to disclose relevant information
during voir dire: abuse of discretion
United States v. Brown, 102 F.3d 1390, 1398 (5th Cir. 1996) (citation omitted)
Midtrial publicity (whether publicity during a trial is so prejudicial as to require a
mistrial): abuse of discretion
United States v. Bass, 10 F.3d 256, 259 (5th Cir. 1993)
Motion for mistrial based upon an alleged prejudicial comment by the prosecution:
abuse of discretion
37
38. United States v. Heacock, 31 F.3d 249, 256 (5th Cir. 1994), citing United States v.
Bentley-Smith, 2 F.3d 1368, 1378 (5th Cir. 1993)
MULTIPLICITY: de novo
United States v. Hord, 6 F.3d 276, 280 (5th Cir. 1993), citing United States v. Brechtel, 997
F.2d 1108, 1112 (5th Cir. 1993)
NEW TRIAL:
Characterization of district court’s ruling (i.e., grant of new trial, or grant of judgment of
acquittal?): de novo
United States v. Robertson, 110 F.3d 1113, 1116 (5th Cir. 1997)
Denial of motion for new trial based on alleged extrinsic influence on jury: abuse of
discretion
United States v. Kelley, 140 F.3d 596, 608 (5th Cir. 1998), citing United States v.
Jobe, 101 F.3d 1046, 1058 (5th Cir. 1996)
Procedures used to investigate & whether evidentiary hearing is granted: abuse of
discretion
United States v. Kelley, 140 F.3d 596, 608 (5th Cir. 1998), citing United
States v. Jobe, 101 F.3d 1046, 1058 (5th Cir. 1996)
Denial of motion for new trial generally: abuse of discretion
United States v. Blackthorne, 378 F.3d 449, 452 (5th Cir. 2004) (citing
United States v. Gresham, 118 F.3d 258, 267 (5th Cir. 1997)); United States
v. Brechtel, 997 F.2d 1108, 1120 & n.54 (5th Cir. 1993); United States v.
Baytank (Houston), 934 F.2d 599 (5th Cir. 1991); United States v. Arroyo,
805 F.2d 589, 599 (5th Cir. 1986)
Evidentiary hearing: “Refusal of a hearing on a motion for new trial is reviewed for abuse
of discretion.”
United States v. Blackthorne, 378 F.3d 449, 455 (5th Cir. 2004) (quoting United
States v. Reedy, 304 F.3d 358, 371 n.17 (5th Cir. 2002)); internal quotation marks,
brackets, and further citation omitted)
Denial of motion for new trial (generally): abuse of discretion
38
39. United States v. Scroggins, 379 F.3d 233, 239 (5th Cir. 2004)
Denial of motion for new trial based on newly discovered evidence: clear abuse of
discretion
United States v. Freeman, 77 F.3d 812, 815 (5th Cir. 1996), citing United States v.
Simmons, 714 F.2d 29, 31 (5th Cir. 1983)
BUT SEE United States v. Sullivan, 112 F.3d 180, 182 (5th Cir. 1997) (citation
omitted) (standard is “abuse of discretion”)
Grant of motion for new trial: abuse of discretion
United States v. Robertson, 110 F.3d 1113, 1116 (5th Cir. 1997), citing United States
v. Sanchez-Sotelo, 8 F.3d 202, 212 (5th Cir. 1993)
Questions of law: de novo
United States v. O’Keefe, 128 F.3d 885, 893 (5th Cir. 1997), citing Munn v. Algee,
924 F.2d 568, 575 (5th Cir. 1991)
Mixed questions of law and fact:
Underlying facts: abuse of discretion
Conclusions to be drawn from those facts: de novo
United States v. O’Keefe, 128 F.3d 885, 893 (5th Cir. 1997), citing Ornelas
v. United States, 517 U.S. 690, 696-97, 116 S. Ct. 1657, 1662 (1996)
Motion for new trial based on weight of the evidence: clear abuse of discretion
United States v. Robertson, 110 F.3d 1113, 1116 (5th Cir. 1997), citing United States
v. Sanchez-Sotelo, 8 F.3d 202, 212 (5th Cir. 1993)
OUTRAGEOUS GOVERNMENTAL MISCONDUCT:
Decision to dismiss or not on basis of alleged due process violation from outrageous
governmental misconduct: de novo
United States v. Gutierrez, 343 F.3d 415, 421 (5th Cir. 2003) (citing United States
v. Asibor, 109 F.3d 1023, 1039 (5th Cir. 1997))
39
40. United States v. Asibor, 109 F.3d 1023, 1039 (5th Cir. 1997), citing United States v.
Graves, 556 F.2d 1319, 1322 (5th Cir. 1977); United States v. Johnson, 68 F.3d 899,
902 & n.1 (5th Cir. 1995) (also citing Graves)
Decision not to hold evidentiary hearing: abuse of discretion
United States v. Gutierrez, 343 F.3d 415, 421 (5th Cir. 2003) (citing United States
v. Linetsky, 533 F.2d 192, 203 (5th Cir. 1976))
PAROLE:
Review of decisions of United States Parole Commission:
“This court’s review of the decision of the Parole Commission is
‘quite circumscribed.” Villareal v. U.S. Parole Comm’n, 985 F.2d
835, 839 (5th Cir. 1993). The court ‘simply ask[s] whether there is
some evidence in the record to support the Commission’s decision.’
Id. (internal quotation marks omitted). The Parole Commission’s
decision will be affirmed unless its action ‘is flagrant, unwarranted,
or unauthorized.’ Maddox v. U.S. Parole Comm’n, 821 F.2d 997,
1000 (5th Cir. 1987) (internal quotations and citations omitted).”
Van Etten v. U.S. Parole Comm’n, 96 F.3d 144, 145 (5th Cir. 1996)
Review of Sentencing Guidelines decisions made by Parole Commission in treaty transfer
cases:
Factual findings: clearly erroneous
Guidelines determinations: de novo
Rosier v. U.S. Parole Comm’n, 109 F.3d 212, 214 (5th Cir. 1997), citing
Molano-Garza v. U.S. Parole Comm’n, 965 F.2d 20, 23 (5th Cir. 1992)
PHOTOGRAPHS:
Admission of photographs into evidence: abuse of discretion
United States v. Weeks, 919 F.2d 248, 253 (5th Cir. 1990); United States v. Kaiser,
545 F.2d 467, 476 (5th Cir. 1977)
PLAIN ERROR:
40
41. Failure to object in the trial court results in review solely for plain error. Fed. R. Crim. P. 52(b);
United States v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994) (en banc).
An appellate court will find plain error “only if: (1) there was an error; (2) the error was clear and
obvious; and (3) the error affected the defendant’s substantial rights.” United States v. Calverley,
37 F.3d 160, 163-64 (5th Cir. 1994), quoting United States v. Olano, 507 U.S. 725, 732 (1993).
When these elements are present, the appellate court may exercise its discretion to correct the error
if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Calverley,
37 F.3d at 164.
PLEA AGREEMENT:
Alleged breach of plea agreement: de novo
United States v. Saling, 205 F.3d 764, 766 (5th Cir. 2000) (footnote with citations
omitted); United States v. Castaneda, 162 F.3d 832, 836 (5th Cir. 1998) (citations
omitted); United States v. Moulder, 141 F.3d 568, 571 (5th Cir. 1998) (citation
omitted); United States v. Laday, 56 F.3d 24, 25-26 (5th Cir. 1995) (citation omitted)
But defendant must prove breach by preponderance of the evidence, United States
v. Solis, 299 F.3d 420, 434 (5th Cir. 2002)
Existence of a plea agreement: clearly erroneous
United States v. Chagra, 957 F.2d 192, 194 (5th Cir. 1992) (citations omitted)
District court’s findings as to the underlying facts that constitute breach: clearly
erroneous
United States v. Castaneda, 162 F.3d 832, 836 n.24 (5th Cir. 1998)
BUT NOTE: Where district court fails to make any factual findings, appellate court “must
conduct a de novo review of every aspect of [the defendant’s] purported breach.”
United States v. Castaneda, 162 F.3d 832, 836 n.24 (5th Cir. 1998)
Findings with respect to plea discussions/negotiations, existence and terms of plea
agreement, and whether promise induced plea: clearly erroneous
United States v. Kirk, 70 F.3d 791, 793 (5th Cir. 1995) (citing United States v.
Williams, 809 F.2d 1072, 1079 (5th Cir. 1987)), judgment aff’d by an equally
divided en banc court, 105 F.3d 997 (5th Cir. 1997) (en banc)
41
42. Rejection of a plea agreement: abuse of discretion
United States v. Crowell, 60 F.3d 199, 205 (5th Cir. 1995) (citations omitted)
PRE-INDICTMENT DELAY:
Generally: “The district court’s factual determinations are reviewed only for clear error; its
conclusions of law, de novo.”
United States v. Avants, 367 F.3d 433, 441 (5th Cir. 2004) (citing United States v.
Beszborn, 21 F.3d 62, 66 (5th Cir. 1994))
Entitlement to discovery/evidentiary hearing: abuse of discretion
United States v. Mulderig, 120 F.3d 534, 540 (5th Cir. 1997)
Findings of prejudice vel non: clearly erroneous
United States v. Parks, 68 F.3d 860, 868 (5th Cir. 1995); United States v. Beszborn,
21 F.3d 62, 66 (5th Cir. 1994)
PRESENCE:
District court's finding that a defendant is voluntarily absent from her trial: clear error
Decision to proceed without a voluntarily absent defendant: abuse of discretion
United States v. Davis, 61 F.3d 291, 302 (5th Cir. 1995) (citations omitted)
PRESENTENCE REPORT:
Decision to publicly disclose presentence report: abuse of discretion
United States v. Huckaby, 43 F.3d 135, 138 (5th Cir. 1995)
PRO SE REPRESENTATION:
Whether a defendant knowingly and voluntarily waived the right to counsel and elected to
proceed pro se is a mixed question of law and fact that is reviewed de novo.
Crandell v. Brunnell, 25 F.3d 754, 754 (9th Cir. 1994).
PROBATION:
42
43. Revocation of probation: abuse of discretion
United States v. King, 990 F.2d 190, 193 (5th Cir. 1993); United States v. Fryar,
920 F.2d 252, 258 (5th Cir. 1990)
PROSECUTORIAL MISCONDUCT:
Improper remarks in closing argument: court reviews allegedly improper prosecutorial
remarks to determine whether they were both inappropriate and harmful. In order to
constitute reversible error, the offending remarks must have affected the defendant's
substantial rights, and must have contributed to the guilty verdict.
United States v. Lowenberg, 853 F.2d 295, 301 (5th Cir. 1988)
GRIFFIN error (comment on defendant's failure to testify): de novo
“We review de novo whether a prosecutor’s argument is an impermissible
comment on the defendant’s right not to testify.”
United States v. Morrow, 177 F.3d 272, 299 (5th Cir. 1999) (citation
omitted)
Improper remarks:
“In reviewing a claim of prosecutorial misconduct, this Court applies a
two-step analysis. We must first decide whether or not the prosecutor
‘made an improper remark.’ In determining whether a prosecutor’s
comment was improper, it is necessary to look at the comment in context.
If an improper remark was made, we must then determine whether the
remark ‘prejudiced the defendant’s substantive rights.’ The prejudice
determination involves ‘(1) the magnitude of the statement’s prejudice, (2)
the effect of any cautionary instructions given, and (3) the strength of the
evidence of the defendant’s guilt.’ ‘The determinative question is whether
the prosecutor’s remarks cast serious doubt on the correctness of the jury’s
verdict.’”
United States v. Insaulgarat, 378 F.3d 456, 461 (5th Cir. 2004) (citations
omitted)
Interference with attorney-client relationship: decision to dismiss on this basis
reviewed de novo
43
44. United States v. Johnson, 68 F.3d 899, 902 & n.1 (5th Cir. 1995), citing United
States v. Graves, 556 F.2d 1319, 1322 (5th Cir. 1977)
Substantial interference with defense witnesses: clearly erroneous
United States v. Scroggins, 379 F.3d 233, 240 (5th Cir. 2004)
Use of perjured testimony (violation of Napue v. Illinois):
Underlying facts: abuse of discretion
Conclusions to be drawn from those facts: de novo
United States v. O’Keefe, 128 F.3d 885, 893-94 (5th Cir.1997)
Prosecutorial vindictiveness: See VINDICTIVE PROSECUTION
PUBLICITY:
Denial of evidentiary hearing on pretrial publicity: abuse of discretion
United States v. Smith-Bowman, 76 F.3d 634, 637 (5th Cir. 1996)
Whether publicity during trial requires mistrial: abuse of discretion
United States v. Bass, 10 F.3d 256, 259 (5th Cir. 1993)
Denial of request for voir dire on midtrial publicity: abuse of discretion
United States v. Faulkner, 17 F.3d 745, 763 (5th Cir. 1994)
RECUSAL:
District judge's decision to recuse him- or herself from case: abuse of discretion
United States v. Okoronkwo, 46 F.3d 426. 437 (5th Cir. 1995), citing United
States v. MMR Corp., 954 F.3d 1040, 1044 (5th Cir. 1992)
District judge's failure to recuse him- or herself from case on proper motion: abuse of
discretion
United States v. Bremers, 195 F.3d 221, 226 (5th Cir. 1999), citing United States
v. Anderson, 160 F.3d 231, 233 (5th Cir. 1998); United States v. Jordan, 49 F.3d
44
45. 152, 156 & 158 (5th Cir. 1995)
REDUCTION OF SENTENCE:
Motion to reduce sentence (pre-Guidelines version of Rule 35): gross abuse of
discretion
United States v. Sinclair, 1 F.3d 329, 330 (5th Cir. 1993) (per curiam)
18 U.S.C. § 3582(c)(2) (retroactive reduced Guidelines range):
Decision whether to reduce sentence pursuant to 18 U.S.C. § 3582(c)(2) for
retroactive Guidelines amendments: abuse of discretion
United States v. Mueller, 168 F.3d 186, 188 (5th Cir. 1999), citing United
States v. Townsend, 55 F.3d 168, 170 (5th Cir. 1995); United States v.
Levay, 76 F.3d 671, 673 (5th Cir.1996), citing United States v. Townsend,
55 F.3d 168 (5th Cir. 1995); United States v. Whitebird, 55 F.3d 1007,
1009 (5th Cir. 1995), citing United States v. Pardue, 36 F.3d 429, 430 (5th
Cir. 1994) (per curiam)
Findings of fact on a § 3582(c)(2) motion: clearly erroneous
United States v. Levay, 76 F.3d 671, 673 (5th Cir.1996), citing United
States v. Mimms, 43 F.3d 217, 220 (5th Cir. 1995)
REMOVAL:
Constitutional challenge to prior removal under United States v. Mendoza-Lopez:
de novo
United States v. Lopez-Vasquez, 227 F.3d 476, 481 (5th Cir. 2000) (citation
omitted)
REOPENING PROCEEDINGS:
Denial of motion to reopen: abuse of discretion
United States v. Parker, 73 F.3d 48, 53 (5th Cir. 1996) (citing United States v.
Walker, 772 F.2d 1172, 1177 (5th Cir. 1985)), reinstated in relevant part on reh’g
en banc, 104 F.3d 72 (5th Cir. 1997) (en banc) (trial)
45
46. United States v. Hassan, 83 F.3d 693, 696 (5th Cir.1996); United States v. Hobbs,
31 F.3d 918, 923 (9th Cir. 1994) (suppression hearing)
United States v. Kubosh, 63 F.3d 404, 406 (5th Cir. 1995), cert. granted and
judgment vacated on other grounds, 516 U.S. 1143 (1996), reinstated in relevant
part on remand, 120 F.3d 47 (5th Cir. 1997) (sentencing; statutory penalty
enhancement proceeding under 21 U.S.C. § 851)
RESENTENCING -- See subheading of same name under SENTENCING
RESTITUTION:
Generally:
“Restitution, a criminal penalty, is reviewed de novo.”
United States v. Tencer, 107 F.3d 1120, 1135 (5th Cir. 1997), citing
United States v. Hayes, 32 F.3d 171, 172 (5th Cir. 1994)
Legality of restitution order: de novo
United States v. Adams, 363 F.3d 363, 365 (5th Cir. 2004) (MVRA);
United States v. Mancillas, 172 F.3d 341, 342 (5th Cir. 1999) (“We review
the legality of a restitution order de novo.”) (citing United States v.
Chaney, 964 F.2d 437, 451 (5th Cir. 1992))
If sentence is legal, award of restitution reviewed for: abuse of discretion
United States v. Adams, 363 F.3d 363, 365 (5th Cir. 2004)
(MVRA); United States v. Reese, 998 F.2d 1275, 1280 (5th Cir.
1993) (VWPA); United States v. Chaney, 964 F.2d 437, 451-52
(5th Cir. 1992)) (VWPA)
Sentencing court's compliance with the statutory requirements of the Victim and
Witness Protection Act (VWPA): abuse of discretion.
United States v. Reese, 998 F.2d 1275, 1281 (5th Cir. 1993); United States v.
Barndt, 913 F.2d 201 (5th Cir. 1990)
Propriety of restitution payment schedule: abuse of discretion
United States v. Caldwell, 302 F.3d 399, 419 (5th Cir. 2002), citing United States
46
47. v. Hughey, 147 F.3d 423, 436 (5th Cir. 1998)
Whether a person or entity is a “victim” under the VWPA: de novo
United States v. Caldwell, 302 F.3d 399, 419 (5th Cir. 2002), citing United States
v. Mancillas, 172 F.3d 341, 342 (5th Cir. 1999)
RETURN OF PROPERTY (FED. R. CRIM. P. 41(e)):
District court’s factual determination of lawful possession, or ownership: clearly
erroneous
District court’s interpretation of Rule 41(e): de novo
United States v. Dean, 100 F.3d 19, 20 (5th Cir. 1996) (citations omitted)
REVOCATION PROCEEDINGS -- See PROBATION and SUPERVISED RELEASE
RULE 32 -- See topic subheading of same name under SENTENCING, infra
RULE 35:
Motion to correct sentence (pre-Guidelines version of Rule 35): gross abuse of
discretion.
United States v. Martinez, 19 F.3d 910, 911 (5th Cir. 1994), citing United
States v. Hanyard, 762 F.2d 1226, 1228 (5th Cir. 1985)
Motion to reduce sentence (pre-Guidelines version of Rule 35): gross abuse of
discretion
United States v. Sinclair, 1 F.3d 329, 330 (5th Cir. 1993) (per curiam)
RULE 43:
Whether Rule 43 requires defendant’s presence at midtrial voir dire of jury on alleged
jury tampering incident: de novo
United States v. Lampton, 158 F.3d 251, 257 (5th Cir. 1998) (citation omitted)
"SAFETY VALVE": See subheading of same name under SENTENCING
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48. SANCTIONS:
Whether an attorney’s conduct is subject to sanction: de novo
A district court’s imposition of a particular sanction: abuse of discretion
In re Sealed Appellant, 194 F.3d 666, 670 (5th Cir. 1999), citing United States v.
Brown, 72 F.3d 25 (5th Cir. 1995)
HOWEVER: “That discretion is abused if the ruling is based on ‘an erroneous
view of the law or on a clearly erroneous assessment of the evidence.’”
United States v. Brown, 72 F.3d 25, 28 (5th Cir. 1995), citing Chaves v. M/V
Medina Star, 47 F.3d 153, 156 (5th Cir. 1995)
SEARCH AND SEIZURE: See also WARRANTS
General: Factual findings are reviewed under the clearly erroneous standard, and the
district court's conclusions of law on legal questions are reviewed de novo.
United States v. Richard, 994 F.2d 244, 247 (5th Cir. 1993) (citation omitted)
Determination whether a person is acting as an agent for the government: factual finding
subject to clearly erroneous review
United States v. Blocker, 104 F.3d 720, 725 (5th Cir. 1997), citing United States
v. Jenkins, 46 F.3d 447, 480 (5th Cir. 1995)
Chimel [v. California] determinations of immediate control (whether an item is within
the "immediate control" of an arrestee for purposes of search pursuant to arrest): de novo
United States v. Johnson, 18 F.3d 293, 294 (5th Cir. 1994), granting reh'g in part
to and clarifying 16 F.3d 69 (5th Cir. 1994)
Consent:
District court's ultimate determination of consent: clearly erroneous
United States v. Wilson, 36 F.3d 1298, 1304 (5th Cir. 1994), citing United
States v. Ponce, 8 F.3d 989, 997 (5th Cir. 1993)
Scope of consent: de novo
48
49. United States v. McSween, 53 F.3d 684, 687 n.4 (5th Cir. 1995), citing
United States v. Rich, 992 F.2d 502, 505 (5th Cir. 1993)
Voluntariness of consent to search: clearly erroneous
United States v. Tompkins, 130 F.3d 117, 120 (5th Cir. 1997) (footnote
with citations omitted); United States v. Brown, 102 F.3d 1390, 1394 (5th
Cir. 1996), citing United States v. Zucco, 71 F.3d 188, 191 (5th Cir. 1995)
BUT SEE United States v. Asibor, 109 F.3d 1023, 1038 (5th Cir. 1997)
(“We review de novo the voluntariness of consent to a search.”)
Exigent circumstances:
Factual findings regarding presence of exigent circumstances: clearly
erroneous
United States v. Blount, 123 F.3d 831, 837 (5th Cir. 1997) (en
banc); United States v. Reed, 26 F.3d 523, 528 (5th Cir. 1994)
See also United States v. Troop, 514 F.3d 405, 409 (5th Cir. 2008); United States
v. Howard, 106 F.3d 70, 74 (5th Cir. 1997) (“Whether exigent circumstances exist
is a question of fact, reversible only if the district court’s factual findings are
clearly erroneous.”) (citation omitted); United States v. Rodea, 102 F.3d 1401,
1404 (5th Cir. 1996) (“Exigent circumstances vel non is a factual finding
reviewed for clear error.”) (citation omitted)
Manufactured exigency:
Whether law enforcement officers engaged in unreasonable investigative
tactics, thus manufacturing exigent circumstances: de novo
United States v. Rodea, 102 F.3d 1401, 1404 (5th Cir. 1996)
Denial of Franks v. Delaware evidentiary hearing: de novo
United States v. Dickey, 102 F.3d 157, 162 (5th Cir. 1996), citing United States
v. Mueller, 902 F.2d 336, 341 (5th Cir. 1990)
Whether good-faith exception to the exclusionary rule applies: de novo
United States v. Marmolejo, 89 F.3d 1185, 1198 (5th Cir. 1996) (citing United
States v. Satterwhite, 981 F.2d 317, 321 (5th Cir. 1992)), aff’d sub nom. Salinas
49
50. v. United States, 522 U.S. 52 (1997)
Independent source doctrine: two part analysis
(1) Does the warrant affidavit, when purged of tainted information gained through
an initial illegal search, contain sufficient remaining facts to constitute probable
cause? (“Probable cause”) (Reviewed de novo)
(2) Did the illegal search affect or motivate the officers’ decision to procure the
effect of the search warrant? (“Effect of the illegal entry”) (Factual
determination reviewed under clearly erroneous standard)
United States v. Hassan, 83 F.3d 693, 697 (5th Cir. 1996) (citations
omitted)
Whether search is a valid inventory search: de novo
United States v. Como, 53 F.3d 87, 91 (5th Cir. 1995), quoting and citing United
States v. Gallo, 927 F.2d 815, 819 (5th Cir. 1991)
Reasonableness of investigatory stop/frisk: de novo
United States v. Jordan, 232 F.3d 447, 448 (5th Cir. 2000), citing United States v.
Campbell, 178 F.3d 345, 348 (5th Cir. 1999)
Ultimate conclusion that probable cause exists/ does not exist: de novo
Ornelas v. United States, 517 U.S. 690, 699 (1996); United States v. Chappell, 6
F.3d 1095, 1100 (5th Cir. 1993) (citation omitted)
BUT: Factual findings supporting probable cause determination:
clearly erroneous
United States v. Ho, 94 F.3d 932, 935 (5th Cir. 1996), citing
United States v. Wadley, 59 F.3d 510, 512 (5th Cir. 1995)
Determination of probable cause after purging of unconstitutionally obtained
information from warrant: de novo
United States v. Blount, 98 F.3d 1489, 1495 (5th Cir. 1996) (footnote with
citations omitted), on reh’g en banc, 123 F.3d 831 (5th Cir. 1997) (en
banc)
50
51. “Reasonable belief” that subject of arrest warrant is inside residence, permitting
entry: clearly erroneous
United States v. Route, 104 F.3d 59, 62 (5th Cir. 1997)
Reasonable expectation of privacy:
Whether an expectation of privacy is reasonable under the circumstances: de novo
United States v. Paige, 136 F.3d 1012, 1017 (5th Cir. 1998), citing United
States v. Smith, 978 F.2d 171, 176 (5th Cir. 1992)
Determination of reasonable suspicion: de novo
Ornelas v. United States, 517 U.S. 690, 699 (1996)
HOWEVER, while “as a general matter determinations of reasonable
suspicion and probable cause should be reviewed de novo on appeal ... a
reviewing court should take care both to review findings of historical fact
only for clear error and to give due weight to inferences drawn from those
facts by resident judges and local law enforcement officers.”
Ornelas v. United States, 517 U.S. 690, 699 (1996)
Ultimate determination of Fourth Amendment reasonableness: de novo
United States v. Sinisterra, 77 F.3d 101, 104 (5th Cir. 1996), citing United States
v. Seals, 987 F.2d 1102, 1106 (5th Cir. 1993)
Reasonableness of investigatory stop/frisk: de novo
United States v. Jordan, 232 F.3d 447, 448 (5th Cir. 2000), citing United States v.
Campbell, 178 F.3d 345, 348 (5th Cir. 1999)
Reasonableness of an officer’s reliance on a warrant: de novo
United States v. Kelley, 140 F.3d 596, 601 (5th Cir. 1998), citing United States v.
Satterwhite, 980 F.2d 317, 320 (5th Cir. 1992); United States v. Alix, 86 F.3d
429, 435 (5th Cir. 1996), citing United States v. Satterwhite, 980 F.2d 317, 321
(5th Cir. 1992); United States v. Fields, 72 F.3d 1200, 1214 & n.55 (5th Cir.
1996) (citing Satterwhite)
Standing:
51