United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED February 17, 2023 No. 21-11157 Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee,

versus

Ruel M. Hamilton,

Defendant—Appellant.

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:19-CR-83

Before King, Elrod, and Southwick, Circuit Judges. Per Curiam: The petition for panel rehearing is DENIED. At the request of one of its members, the court was polled on whether to rehear this case en banc, and a majority did not vote in favor of rehearing (Fed. R. App. P. 35 and 5th Cir. R. 35). In the en banc poll, seven judges voted in favor of rehearing (Richman, Jones, Smith, Graves, Higginson, Ho, and Oldham), and nine judges voted against rehearing (Stewart, Elrod, Southwick, Haynes, Willett, Duncan, Engelhardt, Wilson, and Douglas).

1 Case: 21-11157 Document: 00516650444 Page: 2 Date Filed: 02/17/2023

No. 20-40359

Jennifer Walker Elrod, Circuit Judge, joined by Willett, Duncan, and Wilson, Circuit Judges, concurring in the denial of rehearing en banc: This case was about statutory interpretation and jury instructions— not the First Amendment. In considering Defendant Ruel Hamilton’s appeal from his conviction under 18 U.S.C. § 666(a)(2), the unanimous panel ex- plained that the jury was not instructed that a quid pro quo was required for conviction. United States v. Hamilton, 46 F.4th 389, 398–99 (5th Cir. 2022). The statute requires such an instruction. It is for that reason alone that Ham- ilton must be tried again. True, we also recognized that First Amendment problems “lurk[ed] . . . beneath the surface” of the statutory-interpretation question. Id. at 398 n.3. But we explicitly declined to address those problems. Id. Even so, the dissenting opinion construes our unremarkable decision as having “turned the First Amendment on its head.” Post at 6. Respectfully, that conjures up a constitutional problem where none exists. As is clear from the record, the district court did not address whether § 666 might violate the First Amendment. At oral argument, Hamilton’s counsel eschewed any reliance on the First Amendment. And the panel opin- ion mentions the First Amendment only twice: to note the district court said nothing on the subject, and to explain that the panel was saying nothing on the subject. Hamilton, 46 F.4th at 393, 398 n.3. In short, the dissenting opin- ion’s focus on the First Amendment is misplaced. And so although that opin- ion laments several of our court’s recent decisions, there is no need to ad- dress the First Amendment cases invoked by the dissenting opinion—or the dissenting judge’s separate opinions in those cases. Post at 4, 5 n.1, 6 (citing Villarreal v. City of Laredo, 44 F.4th 363 (5th Cir. 2022) (Opinion of Ho, J.), vacated on rehearing en banc, 52 F.4th 265 (5th Cir. 2022); Zimmerman v. City of Austin, 888 F.3d 163, 164 (5th Cir. 2018) (Ho, J., dissenting from denial of

2 Case: 21-11157