author: HAYNES, Circuit Judge:

text:
    Kenneth W. ABBOTT; Food & Water Watch, Incorporated, Plaintiffs-Appellants v. BP EXPLORATION & PRODUCTION, INCORPORATED; BP America, Incorporated; BP P.L.C.; BP Products North America, Incorporated, Defendants-Appellees
    No. 16-20028
    United States Court of Appeals, Fifth Circuit.
    Filed March 14, 2017

      Justin A. Nelson, Susman Godfrey, L.L.P., Gerald Mark Birnberg, Williams, Birnberg & Andersen, L.L.P., Jennifer Bruch Hogan, Hogan & Hogan, Edward A. Mallett, Esq., Mallett Saper Berg, L.L.P., Houston, TX, Rene Marie Haas, David Lee Perry, Perry & Haas, Corpus Christi, TX, for Kenneth W. Abbott.
    Justin A. Nelson, Susman Godfrey, L.L.P., Gerald Mark Birnberg, Williams, Birnberg & Andersen, L.L.P., Jennifer Bruch Hogan, Hogan & Hogan, Edward A. Mallett, Esq., Mallett Saper Berg, L.L.P., Houston, TX, Rene Marie Haas, Perry & Haas, Corpus Christi, TX, Mary Melissa Whittle, Earthjustice, Austin, TX, for Food & Water Watch, Incorporated.
    Lynne Liberato, William Feldman, Attorney, Mark R. Trachtenberg, Haynes & Boone, L.L.P., Anne M. Rodgers, Esq., Norton Rose Fulbright US, L.L.P., Houston, TX, Jonathan Andrew Hunter, Liskow & Lewis, P.L.C., New Orleans, LA, for Defendants-Appellees.
    Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges.
   HAYNES, Circuit Judge:

Plaintiffs Kenneth Abbott and Food & Water Watch, Incorporated appeal the district court’s grant of summary judgment on all claims in favor of Defendants BP Exploration & Production, Inc., BP America, Inc., BP p.l.c., and BP Products North America Inc. (collectively, “BP”). We AFFIRM.

I. Background

This appeal centers on the regulatory process through which BP built and maintained the Atlantis Platform, a semi-submersible floating oil production facility located in the Gulf of Mexico. Plaintiff Keith Abbott worked for BP in the Atlantis administrative offices from August 2008 to February 2009. During his employment, Abbott came to believe that BP did not have all of the necessary documentation for the Atlantis and that many of the Atlantis documents that BP did have were not approved by engineers as required by applicable regulations.

On or about April 9, 2009, Abbott filed a written submission to the United States Attorney General and the United States Attorney for the Southern District of Texas detailing his concerns with BP’s Atlantis documentation. Abbott subsequently filed, under seal, a complaint pursuant to 31 U.S.C. § 3730(b)(2) of the False Claims Act (“FCA”) on April 21, 2009, claiming, inter alia, that BP falsely certified compliance with various regulatory requirements. As a result of his lawsuit, the Department of the Interior (“DOI”) began reviewing BP’s compliance with those regulatory requirements in May 2009. DOI also received inquiries from members of Congress about the Atlantis in the wake of testimony, including that of Abbott, before the Natural Resources Subcommittee on National Parks, Forests, and Public Lands in June 2009. By March 2010, DOI indicated to Congress that DOI would conduct a full investigation.

On September 10, 2010, while the DOI was investigating the Atlantis, Abbott amended his complaint to both add Food & Water Watch, Incorporated as a plaintiff and include additional claims for violations of the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1331 et seq. The amended complaint contained a section titled “Publicly Available Information,” in which Abbott included new evidence concerning the specific language of the certifications made by BP, pursuant to 30 C.F.R. §§ 250.802(e)(5) (2005) and 250.901(d) (2002), to the DOI. BP filed a motion to dismiss in response to this amended complaint, to which the United States of America (“Government”) filed a statement of interest that took no position on the validity ór sufficiency of Plaintiffs’ amended complaint.

DOI’s investigation culminated in a 2011 report (“DOI Report”) that concluded that “Abbott’s allegations that Atlantis operations personnel lacked access to critical, engineer-approved drawings are without merit,” and that “Abbott’s allegations about false submissions by BP to [DOI] are unfounded.” The DOI Report also “found no grounds for suspending the operations of the Atlantis ... or revoking BP’s designation as an operator.... ”

Shortly after the DOI issued its report, the district court denied BP’s motion to dismiss. During discovery, Food & Water Watch, Incorporated identified three donors whom they alleged could be injured by an oil spill due to the allegedly false Atlantis certifications. These donors were Allen Estay, a shrimp business operator located off the Gulf in Louisiana, Nancy James, a resident along the Gulf in Florida, and Donna Boland, a California resident who owns a rental property near the Gulf in Texas. Abbott also stated that he regularly visited the Gulf, and would be damaged if an oil spill resulted from the allegedly incorrect certifications. Following discovery, the parties filed motions for summary judgment. The district court ultimately granted summary judgment in favor of BP on all claims. This appeal followed.

II. Standard of Review

Motions for summary judgment are reviewed de novo. United States ex rel. Babalola v. Sharma, 746 F.3d 157, 160 (5th Cir.), cert. denied, — U.S. -, 134 S.Ct. 2856, 189 L.Ed.2d 809 (2014). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). We view the evidence on the record “in the light most favorable to the non-moving party.” United States v. Caremark, Inc., 634 F.3d 808, 814 (5th Cir. 2011) (citing United Fire & Cas. Co. v. Hixson Bros., Inc., 453 F.3d 283, 285 (5th Cir. 2006)).

III. Discussion

In order to survive BP’s motion for summary judgment, Plaintiffs must create a dispute of material fact as to the following four elements of an FCA claim: “(1) whether there was a false statement or fraudulent course of conduct; (2) made or carried out with the requisite scienter; (3) that was material; and (4) that caused the government to' pay out money or to forfeit moneys due (i.e., that involved a claim).” United States ex rel. Longhi v. United States, 575 F.3d 458, 467 (5th Cir. 2009) (citation omitted). “The term ‘material’ means having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.” Universal Health Servs., Inc. v. United States ex rel. Escobar, — U.S. -, 136 S.Ct. 1989, 2002, 195 L.Ed.2d 348 (2016) (quoting 31 U.S.C. § 3729(b)(4)) (citing Neder v. United States, 527 U.S. 1, 16, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) and Kungys v. United States, 485 U.S. 759, 770, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988)).

Plaintiffs take issue with multiple facets of the district court’s grant of summary-judgment. We address each in turn.

As recently discussed by the Supreme Court in Escobar, “[t]he materiality standard is demanding.” Id. at 2003. It debunked the notion that a Governmental designation of compliance as a condition of payment by itself is sufficient to prove materiality. Id. Further, the Court concluded that it is not “sufficient for a finding of materiality that the Government would have the option to decline to pay if it knew of the defendant’s noncompliance.” Id. In summarizing the determination of materiality, the Supreme Court offered the following insight:

[I]f the Government pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material. Or, if the Government regularly pays a particular type of claim in full despite actual knowledge that certain requirements were violated, and has signaled no change in position, that is strong evidence that the requirements are not material.

Id. at 2003-04.

Plaintiffs’ FCA claims center on whether engineers approved the various stages of construction of the Atlantis. In arguing that fact issues exist, Plaintiffs point to missing stamps, drawings not specifically marked as “As-Built,” BP internal procedures requiring “As-Built” markings, and testimony from a DOI official stating that the Atlantis would not have been approved had BP not certified its compliance with various regulations. These facts, however, do not create an issue of fact as to materiality given the particular circumstances of Plaintiffs’ case. Rarely does the pursuit of an individual’s FCA claims lead to an investigation requested by Congress. But that is' the case with these Plaintiffs, whose insistence on the alleged issues with the Atlantis led to Congressional hearings, an investigation by a federal agency, and the DOI Report. The DOI Report considered many of the same arguments advanced before us now by Plaintiffs and nonetheless found that the Atlantis was in compliance with those regulations relating to certification. The DOI Report also found no grounds to suspend the operation of the Atlantis or revoke BP’s designation as an operator.

As recognized in Escobar, when the DOI decided to allow the Atlantis to continue drilling after a substantial investigation into Plaintiffs’ allegations, that decision represents “strong evidence” that the requirements in those regulations are not material. Id. These “strong facts” have not been rebutted by Plaintiffs’ evidence such that Plaintiffs have failed to create a genuine dispute of material fact as to materiality. The district court therefore correctly granted summary judgment on the FCA claims in favor of BP.

Turning to Plaintiffs’ OCSLA claims, we agree with the district court that Plaintiffs lack standing to pursue these claims. In order to survive summary judgment, Plaintiffs must demonstrate (1) an injury in fact that is concrete and actual or imminent; (2) a causal connection between the injury and the challenged action of the defendant; and (3) a likelihood that the injury would be redressed by a favorable judicial decision. United States v. Johnson, 632 F.3d 912, 919 (5th Cir. 2011) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). Implicit in the first requirement of Article III standing is the notion that the injury in fact is particularized to the Plaintiffs. Spokeo Inc. v. Robins, — U.S. -, 136 S.Ct. 1540, 1548, 194 L.Ed.2d 635 (2016) (citing Lujan, 504 U.S. at 560 n.1, 112 S.Ct. 2130). “Particularization is necessary to establish injury in fact” and requires Plaintiffs to demonstrate that their injury “affect[s] the plaintiffs] in a personal and individual way.” Id. (citation omitted); see also Pub. Citizen, Inc. v. Nat’l Highway Traffic Safety Admin., 489 F.3d 1279, 1292 (D.C. Cir. 2007) (“The Supreme Court also has stated that the asserted injury must be particularized — which- the Court has also described as personal, individual, distinct, and differentiated — not generalized or undifferentiated.” (citations omitted)).

Here, Plaintiffs have failed to plead individualized injuries. Their injuries instead appear to be generalized and undifferentiated. These alleged injuries could occur to anyone who uses the Gulf regularly, works near the Gulf, or lives or owns property near the Gulf, i.e., millions of people. We hold, consistent with the district court, that Plaintiffs’ injuries are not sufficiently particularized to support Article III standing. See Spokeo, 136 S.Ct. at 1548; see also DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 344, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) (“Standing has been rejected in such cases because the alleged injury is not concrete and particularized, but instead [an injury plaintiff] suffers in some indefinite way in common with people generally.” (citations omitted)).

For the reasons discussed above, we AFFIRM.

      . The Government instead disputed two arguments raised by BP in their motion to dismiss.

        . BP also moved for summary judgment on the basis that the court lacked subject matter jurisdiction over Plaintiffs' amended complaint due to the FCA public disclosure bar. 31 U.S.C. § 3730(e)(4)(A). But by the time Plaintiffs amended their complaint and BP moved for summary judgment on this ground, the language of the public disclosure bar had been changed by the Patient Protection and Affordable Care Act ("ACA”). While we have not analyzed whether the ACA-changed language alters the jurisdictional nature of the public disclosure bar, a number of our sister circuits have determined that the new language inserted by the ACA no longer presents a jurisdictional bar. See United States ex rel. Moore & Co., P.A. v. Majestic Blue Fisheries, LLC, 812 F.3d 294, 300 (3d Cir. 2016) ("[W]e conclude that the amended bar is not jurisdictional.”); United States ex rel. Osheroff v. Humana, Inc., 776 F.3d 805, 810 (11th Cir. 2015) ("We conclude .that the amended § 3730(e)(4) creates grounds for dismissal for failure to state a claim rather than for lack of jurisdiction.”); United States ex rel. May v. Purdue Pharm. L.P., 737 F.3d 908, 916 (4th Cir. 2013) (“It is apparent, however, that the public-disclosure bar is no longer jurisdictional.”). We agree with our sister circuits that the public disclosure bar is no longer jurisdictional. We are thus not required to first address this argument by BP, as it has no effect on our jurisdiction to entertain other, more persuasive arguments.


source: Caselaw Access Project

author: EDITH BROWN CLEMENT, Circuit Judge:

license: Public Domain

text:
    Linda SURRATT, Individually and as heir and legal representative of the Estate of Lesa Ann Surratt, deceased, Plaintiff-Appellant v. Brian MCCLARIN; City of Sherman; Tom Caver; Trevor Stevens, Defendants-Appellees
    No. 16-40486
    United States Court of Appeals, Fifth Circuit.
    Filed March 14, 2017

      Roger Dickert Sanders, Sanders, O’Han-lon, Motley & Young, P.L.L.C., Sherman, TX, for Plaintiff-Appellant.
    Darrell Gerard-Marc Noga, Cantey Hanger, L.L.P., Dallas, TX, Timothy Derek Carson, Cantey Hanger, L.L.P., Fort Worth, TX, for Defendants-Appellees.
    Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
   EDITH BROWN CLEMENT, Circuit Judge:

In this qualified immunity case, the question on appeal is whether — in light of clearly established law at the time of the incident — officers acted objectively unreasonably when they applied force to the jaw and throat of a suspect who was believed to be hiding evidence in her mouth. Because we conclude that they did not, we AFFIRM.

I.

On August 20, 2013, police officer Tom Caver of the Sherman Police Department effected a traffic stop, pulling over Lesa Ann Surratt (“Surratt”) for signaling one direction but then turning the other. The stop was pretextual. Earlier that day, Caver had been informed that Surratt was in possession of narcotics.

Once officer Trevor Stevens arrived as backup, the officers arrested Surratt for the traffic violation. They also arrested Surratt’s only passenger, Monica Garza, on some outstanding, traffic warrants. The officers handcuffed both women and placed them in the backseat of Caver’s patrol car, securing them with seatbelts. The patrol car was equipped with an in-car video surveillance system which recorded most of the remaining events at issue.

The officers returned to Surratt’s vehicle to retrieve the women’s personal effects, briefly leaving the women alone and unsupervised in the backseat of the patrol car. During this time, Surratt managed to free her right hand from her handcuffs, pull a small baggy of narcotics from underneath her skirt, and place it in her mouth. When Stevens returned to the patrol car a few moments later, he opened the back door nearest to Surratt and heard what sounded like an object hitting the floor. He asked, “What did you do? What did you drop?” When the women stated that they had not dropped anything, Stevens ordered Caver — who had just returned to the vehicle himself and opened Garza’s side door — to “[g]et ’em out, one by one. They were trying to hide something.”

Stevens then noticed Surratt’s skirt and observed, “She’s got her britches pulled up, it’s in her, it’s in her pants.” Caver reached across Garza and grabbed Surratt’s right arm which was behind her back. He then shined his flashlight in Surratt’s face and ordered her to “open [her] mouth up.” Less than four seconds later, Stevens pressed his forearm against Sur-ratt’s left jawline and neck while Caver pressed his thumb into the back of her right jawline to try and force her to open her mouth.

Surratt fought back, grabbing at Caver’s arms as he continued to apply what the police department called “soft hands techniques.” She also kept ignoring the officers’ instructions to open her mouth. After several seconds of struggle, Caver grabbed Surratt’s right hand and attempted to pull her over Garza and out the door. Because Surratt’s seatbelt was still buckled, this took nearly a minute. By the time she was completely out of the patrol car, Surratt was unresponsive and having a seizure.

The officers noted that Surratt was not breathing and radioed for an ambulance. By this time, several other officers had arrived on the scene as backup. The officers assumed that Surratt was choking. Detective Brian McClaran administered the Heimlich Maneuver in an effort to dislodge the obstruction in her throat, but was unsuccessful. Eventually, the fire department arrived and used forceps to remove the plastic baggie from Surratt’s throat. She was transported to the hospital and placed on life support but died thirteen days later as a “result of complications of asphyxia due to airway obstruction by plastic bag.”

Surratt’s sister, Linda Surratt (“Linda”), then filed the instant lawsuit. She asserted claims against Caver, Stevens, McClaran, and the City of Sherman for excessive force, unreasonable search and seizure, violation of due process, and conspiracy, as well as Texas state-law claims for wrongful death, assault and battery, and breach of fiduciary duty. The defendants filed a motion for summary judgment. The district court granted the motion, partly because it concluded that the officers were entitled to qualified immunity. While the district court concluded that the officers had violated Surratt’s Fourth Amendment right to be free from excessive force, it held that the officers’ actions were not objectively unreasonable in light of clearly established law at the time of the incident. Linda timely appealed.

II.

‘We review a grant of summary judgment de novo, viewing all evidence in the light most favorable to the nonmoving party and drawing all reasonable infer-enees in that party’s favor.” Kariuki v. Tarango, 709 F.3d 495, 501 (5th Cir. 2013). Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

III.

Section 1983 enables persons who have been “deprived] of any rights, privileges, or immunities secured by the Constitution and laws” of the United States by the actions of a person or entity operating under color of state law to seek redress from those state actors responsible for the deprivations. 42 U.S.C. § 1983. But qualified immunity insulates those government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Courts use a two-prong analysis to determine whether a defendant is entitled to qualified immunity in a given case. The court must decide both whether the plaintiff has alleged a violation of a constitutional right and whether the government official acted objectively unreasonably in light of “clearly established” law at the time of the incident. Freeman v. Gore, 483 F.3d 404, 411 (5th Cir. 2007). In Pearson v. Callahan, the Supreme Court determined that courts may tackle these questions in any order. 555 U.S. 223, 227, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

Assuming without deciding that the officers’ conduct violated Surratt’s constitutional rights, Linda has failed to demonstrate that the officers acted objectively unreasonably in light of clearly established law at the time of the incident. “[F]or a [law] to be clearly established, ‘existing precedent must have placed the statutory or constitutional question beyond debate.’ ” White v. Pauly, — U.S. -, 137 S.Ct. 548, 551, 196 L.Ed.2d 463 (2017) (per curiam) (quoting Mullenix v. Luna, — U.S. -, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015)). This is done only when we can “identify a case where an officer acting under similar circumstances ... was held to have violated-the Fourth Amendment.” Id. at 552.

Linda has failed to meet this burden. At oral argument, her counsel admitted that she could not point to any binding precedent where a similarly situated officer was found to have violated the Fourth Amendment. The Supreme Court and Fifth Circuit precedent she does cite “lay out excessive-force principles at only a general level,” which the Supreme Court has held to be insufficient outside “an obvious case.” Id.

Furthermore, Fifth Circuit. precedent actually supports the conclusion that the officers’ conduct was not objectively unreasonable in light of clearly established law. In Espinoza v. United States, a suspect— when confronted by police officers — attempted “to swallow and destroy what to the officers appeared to be ... a quantity of narcotics.” 278 F.2d 802, 804 (5th Cir. 1960). The officers responded by “choking [the suspect] and attempting to pry open his mouth by placing pressure against his jaw and nose.” Id. at 803. The panel concluded that “no more force was used than was necessary under the circumstances.” Id. at 804.

As the district court noted, “previous law has provided no guidance regarding what is precisely reasonable and what is unreasonable regarding the use of force to an individual’s throat where the individual appears to be concealing something in their mouth.” Accordingly, we cannot say that the officers acted objectively unreasonably in light of clearly established law.

IV.

In conclusion, we AFFIRM the district court’s grant of summary judgment.

      . Officer McClaran's name is misspelled "McClarin” in the case style.

      . While Linda originally indicated that she intended to appeal all of the district court’s rulings, her brief focuses exclusively on the district court’s qualified immunity determination with respect to her excessive force claims. As such, we consider all other arguments waived. Health Care Serv. Corp. v. Methodist Hosp. of Dall., 814 F.3d 242, 252 n.38 (5th Cir. 2016) (“[I]t is clear that a party who fails to raise an issue in its initial brief waives the right to review of that issue.... ”).

      . Surratt asserts that Espinoza has no value after the Supreme Court decision in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1996). But Schmerber concerned whether police could draw a suspect’s blood without his permission to show he was driving under the influence of alcohol. Id. at 759, 86 S.Ct. 1826. Schmerber did not address police use of force to prevent a suspect from swallowing evidence. Surratt cites no case holding that Schmerber overrules or otherwise changes the analysis in Espinoza, nor does she cite any case from this circuit holding that the bodily intrusion in Schmerber is analogous to the use of force in Espinoza. In addition to all that, Schmerber found no constitutional violation.


author: PER CURIAM:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Tyrone Eugene JORDAN, Defendant-Appellant.
    No. 15-20454 Consolidated With 15-41627
    United States Court of Appeals, Fifth Circuit.
    FILED March 14, 2017

      Joseph H. Gay, Jr., Assistant U.S. Attorney, San-Antonio, TX, Jennifer Sheffield Freel, Assistant U.S. Attorney, Austin, TX, U.S. Attorney’s Office, Western District of Texas, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
    Richard B. Kuniansky, Kuniansky & Associates, Houston, TX, for Defendant-Appellant.
    Before JONES and OWEN, Circuit Judges, and ENGELHARDT, District Judge.

       District Judge of the Eastern District of Louisiana, sitting by designation.

   PER CURIAM:

Tyrone Eugene Jordan appeals his conviction under 18 U.S.C. § 1521 for filing false liens or encumbrances. He additionally contends that the district court erred in applying a sentencing enhancement under § 2A6.1(b)(1) of the Sentencing Guidelines that increased the base offense level by six levels. We affirm the district court’s judgment.

I

A jury convicted Jordan of conspiracy to launder money and conspiracy to smuggle illegal aliens, and he was sentenced to sixty-three months in prison and three years of supervised release. While in prison, Jordan began filing various documents and affidavits in the court in which he was tried for those offenses, claiming he was wrongfully convicted. The Government did not respond to those filings. Jordan then filed a “Notice of Default,” alleging that the Government had agreed to his assertions through its silence and that he would seek “remedy/redress.” He then filed what he denominated an “Affidavit in Support of Motion for Summary Judgment,” which asserted that the trial prosecutor owed him $75,000 in damages and that he had been wrongly imprisoned and forced to participate in prison labor. He subsequently sent a notice to the trial prosecutor, stating that because she had failed to respond to his filings, a contract had been formed and she owed him $6,584,500 in liquidated damages. He sent further demands and then began to include in his filings the judge who presided during his trial, demanding $6,534,500 from the judge as well.

After filing approximately forty documents in the district court, Jordan filed the three documents for which he was indicted in the present case. The first was a U.C.C. Financing Statement filed with the Texas Secretary of State,'listing the trial prosecutor as a debtor and Jordan as the secured party. The statement listed a $6,534,500 contract as collateral. The second and third documents, both titled “Affidavit of Obligation Commercial Lien,” were filed in the Harris County, Texas Clerk’s office and listed the prosecutor and judge as debtors. Each filing was the basis for a separate count in' the indictment, which alleged that Jordan “filed, attempted to file, or conspired to file ... any false lien or encumbrance against the real or personal property” of the prosecutor and judge in violation of 18 U.S.C. § 1521. A federal district court later declared the three documents null and void.

A trial proceeded on the three counts alleging that Jordan had violated 18 U.S.C. § 1521. During the jury’s deliberations, it sent a note asking “[i]f a lien was filed in Harris County, does it affect one person’s real property in Corpus Christi.” At the hearing to discuss the note, Jordan’s attorney argued that “[a]s a factual matter it doesn’t affect their real property.... I don’t know whether you can tell them that or not. I think that’s the truth.” Jordan’s attorney acknowledged that the information was outside the record but asked the judge to take judicial notice that the filings in Harris County could have no effect on property located in Corpus Christi. The judge declined and responded to the jury in writing, stating that “[a]ll the evidence is already before the jury. Please continue to deliberate.” The jury convicted Jordan on all three counts.

The pre-sentencing report recommended a six-level enhancement under § 2A6.1(b)(l) of the Guidelines for “conduct evidencing the intent to carry out such threat,” an enhancement to which Jordan objected. The district court overruled the objection and applied the enhancement, which resulted in an advisory Guidelines sentencing range of 97 to 120 months of imprisonment. Jordan was sentenced to 120 months of imprisonment, the statutory maximum, for each count, to run concurrently.

II

Jordan argues, on various grounds, that the evidence was insufficient as a matter of law to prove a violation of 18 U.S.C. § 1521. Jordan preserved appellate review of the insufficiency of the evidence challenge through his motion for a judgment of acquittal at the close of all evidence. We review the district court’s denial of the motion de novo. “Accordingly, this court reviews to determine whether a rational jury could have found the essential elements of the offense beyond a reasonable doubt.” We “view[ ] the evidence in the light most favorable to the verdict, drawing all reasonable inferences to support the verdict.”

When a “sufficiency of the evidence claim necessarily involves interpreting the meaning of the ... statute,” we review the question of statutory interpretation de novo. The statute under which Jordan was convicted provides:

Whoever files, attempts to file, or conspires to file, in any public record or in any private record which is generally available to the public, any false lien or encumbrance against the real or personal property of an [officer or employee of the United States], on account of the performance of official duties by that individual, knowing or having reason to know that such lien or encumbrance is false or contains any materially false, fictitious, or fraudulent statement or' representation, shall be fined under this title or imprisoned for not more than 10 years, or both.

The text does not lend credence to Jordan’s various arguments as to the meaning of this provision, and decisions from two other circuit courts support the conclusion that the evidence is sufficient to support Jordan’s conviction.

Jordan asserts that none of the three filings are liens or encumbrances. With regard to the U.C.G. Financing Statement filed in the Texas Secretary of State’s office, Jordan observes that the security interest claimed in the filing “is not a security interest in property of the Assistant United States Attorney” and that the filing “purports to create a security interest in a non-existent contract.” Jordan recognizes that § 1521 covers “attempts” but argues that “it is not a federal offense to attempt to create a security interest in a non-existent contract.” If we were to accept this argument, we would read “false” out of the statute. The U.C.C. filing stated that it covered “collateral” and identified a “contract.”' The fact that no such contract exists means that Jordan’s claim that he has a security interest in collateral is an attempt to file a false encumbrance.

Decisions of the Eighth and Ninth Circuit have addressed and rejected arguments, and contentions that inhere within them, that are similar to Jordan’s. In United States v. Reed, the defendant argued that his filing did not identify any property that the judges owned. The Eighth Circuit concluded that this was immaterial because the filing at issue identified various matters as collateral that, though not actually property of .either judge, were the “types of personal property against which valid liens can be filed.” The Eighth Circuit observed, “[n]o doubt the filing would not have succeeded in perfecting a priority claim to any property as a matter of commercial law. But that is not a defense.” That court also concluded that “[t]he prohibition in 18 U.S.C. § 1521 is triggered by the filing of a false or fictitious lien, whether or not it effectively impairs the government official’s property rights and interests. Indeed, legal insufficiency is in the nature of the false, fictitious, and fraudulent liens and encumbrances that Congress intended to proscribe.” We agree with the Eighth Circuit’s construction of § 1521, as did the Ninth Circuit in United States v. Neal.

In Neal, the Ninth Circuit rejected the defendant’s argument that “there was no evidence that the collateral he attempted to attach ... was real or personal property of a federal employee as required by the statute.” That court explained that “[b]e-cause the statute can be violated without completed conduct, the harm the statute protects against arises from the nature of the documents to be filed, not the validity of the documents.” The court continued, “the statute criminalizes the filing of, the attempting to file, or the conspiring to file false hens or encumbrances, not false valid liens or encumbrances.” It was irrelevant that the filing did not pertain to real or personal property that an employee actually owned:

[T]he terms “real and personal property” are not intended to limit the scope of the statute, but rather to indicate the class of documents prohibited by the statute. The statute prohibits the filing of, the attempting to file, or the conspiring to file documents of the sort that could create false liens and encumbrances against federal employees. The prohibition is triggered -by the type of document and resulting harm without regard to the validity or existence of the identified collateral in such documents. [The defendant’s] focus on collateral is misplaced, because the collateral he listed in his Lien Documents is not relevant to whether he violated the statute.

We agree with the Ninth Circuit’s reasoning and its construction of § 1521 in this regard.

Jordan argues that the two filings with the Harris County clerk’s office could not have affected property in Corpus Christi, which is where the judge and prosecutor resided; that the filings were void because they were not “filed for record as required by law”; and that they could not provide any notice unless recorded in the proper county. The foregoing discussion of the scope of § 1521 applies equally to these contentions.

With regard to the two filings in the Harris County clerk’s office, Jordan further argues that they were not liens because “it’s clear from the body of the document that it is an affidavit and not a lien” and that it was filed in the Harris County Real Property Records as an affidavit and not a lien. However, these documents refer, more than once, to a “commercial lien,” the “lien claimant,” and the “lien debtor.” The jury could conclude from these filings that Jordan was attempting to file false liens or encumbrances.

Ill

Jordan next argues that the district court committed error by not answering the jury note that asked “[i]f a lien was filed in Harris County, does it affect one person’s real property in Corpus Christi.” No evidence on the locational effect of a filing was introduced. The judge responded to the note with the instruction that “[a]ll the evidence is already before the jury. Please continue to deliberate.” Jordan timely objected. We review preserved challenges to a district court’s responses to jury notes for abuse of discretion, subject to harmless error analysis.

The district court did not abuse its discretion for many reasons, only a few of which we address. The U.C.C. filing was made with the Texas Secretary of State in Austin, in Travis County, Texas. It constituted a statewide filing. Its effect was not limited to Harris County, Texas. As to the Harris County filings, as we have considered above, their validity was immaterial, and, therefore, whether a filing in Harris County could affect property in Corpus Christi, in Nueces County, was immaterial. Additionally, without any objection from Jordan, the district court had instructed the jury in writing before its deliberations began that it was immaterial whether the lien or encumbrance was valid or actually impaired an official’s property. The jury instructions, which correctly stated the law, said, “[i]t is not a requirement that the lien or encumbrance be valid. Technical deficiencies are not a defense. It is also not a requirement that the lien or encumbrance actually impaired the government official’s property rights and interests.” The response to the jury note that Jordan requested would have conflicted with this instruction.

IV

Jordan challenges the district court’s six-level sentencing enhancement under Sentencing Guideline § 2A6.1(b)(1). We review a district court’s application and interpretation of the Sentencing Guidelines de novo and the court’s factual findings for clear error. “We may affirm an enhancement on any ground supported by the record.”

Section 2A6.1 of the 2015 Sentencing Guidelines, titled “Threatening or Harassing Communications; Hoaxes; False Liens,” assigns a base offense level of 12 for a conviction under a number of statutes, including 18 U.S.C. § 1521. The enhancement to the base offense level at issue in this appeal provides: “If the offense involved any conduct evidencing an intent to carry out such threat, increase by 6 levels.”

Jordan urges us to follow United States v. Learning, an unpublished decision from the Ninth Circuit, which he asserts held that filing a false lien or encumbrance in violation of § 1521 is not a “threat” within the meaning of § 2A6.1(b)(1). In that case, the Ninth Circuit stated that “the enhancement only applies to defendants who engage in conduct evidencing an intent to carry out ‘such threat.’ ” The court continued that “[ajlthough [the defendant] did carry out the offense of filing a false lien, nothing in the record supports the conclusion that [the defendant] made a ‘threat’ within the meaning of Section 2A6.1(b)(1).”

The Government relies upon United States v. Small, an unpublished decision from the Seventh Circuit that appears in tension, if not in conflict, with the Ninth’s Circuit’s decision in Learning. In Small, the Seventh Circuit reviewed whether counsel had correctly concluded in an An- ders brief that there were no non-frivolous issues to be presented on appeal of a conviction under 18 U.S.C. § 1521. With regard to a § 2A6.1(b)(l) sentencing enhancement applied by the sentencing court, the Seventh Circuit said:

Counsel next considers challenging a six-level increase under U.S.S.G. § 2A6.1(b)(1) for attempting to carry out a threat. We agree with counsel that such a challenge would be frivolous because an expressed intent to harm property' is a threat, and [the defendant] warned the [government official] in writing that he would file a lien against the [government official’s] property unless the [government official] paid off [the defendant’s] debt.

Accordingly, the Seventh Circuit appears to have concluded that although there is no mention of “threat” in the text of § 1521, the enhancement under § 2A6.1(b)(1) can apply if there were threats to file a lien.

In resolving the sentencing issue, we first consider the relevant text of § 2A6.1. Subsection (a)(1) provides that the “Base Offense Level” for § 1521 is 12. Subsection (b) is titled “Specific Offense Characteristics,” and subsection (b)(1) provides: “If the offense involved any conduct evidencing an intent to carry out such threat, increase by 6 levels.” Section 2A6.1 of the Guidelines is applicable to a number of offenses, and most of the statutory provisions defining those offenses prohibit making threats. The application of subsection (b)(1) seems clear when considering the appropriate sentence for an offense that explicitly references a “threat.” But we have difficulty discerning to what the phrase “such threat” refers when the statute of conviction is 18 U.S.C. § 1521, as in the present case. The words “threat” or “threatening” do not appear in § 1521, and there is no concept similar to “threat” in § 1521.

Nevertheless, the Commentary to § 2A6.1 indicates that subsection (b)(1) applies to conduct that occurred before or during the offense and, therefore, can apply even if the statute of conviction does not prohibit or reference a “threat.” The Commentary states:

Scope of Conduct to Be Considered. — In determining whether subsections (b)(1), (b)(2), and (b)(3) apply, the court shall consider conduct that occurred prior to or during the offense; however, conduct that occurred prior to the offense must be substantially and directly connected to the offense, under the facts of the case taken as a whole. For example, if the defendant engaged in several acts of mailing threatening letters to the same victim over a period of years (including acts that occurred prior to the offense), then for purposes of determining whether subsections (b)(1), (b)(2), and (b)(3) apply, the court shall consider only those prior acts of threatening the victim that have a substantial and direct connection to the offense.

Jordan does not cite or discuss this commentary. He does assert that our decision in United States v. Goynes held that § 2A6.1(b)(1) cannot be applied unless the defendant performed an overt act evidencing an intent to carry out a threat. He argues that the letters he sent to the trial judge and prosecutor, though harassing, did not contain any threat of physical harm and did not constitute overt acts.

Our decision in Goynes involved a defendant who had been convicted under 18 U.S.C. § 876 of mailing threatening communications. Those communications included threats to have the recipients killed and were graphic and disturbing in then-content. Our court followed “[t]he majority of circuit courts,” which “require that a defendant engage in some form of overt act before sustaining a § 2A6.1(b)(1) enhancement.” We held that “the writing of multiple threatening letters and the nature of their content alone are insufficient to justify the district court’s six-level enhancement.” We continued, “although Goynes’ threats are extremely violent and one of the letters is signed in blood, we find that these acts are merely threats and not conduct sufficiently evidencing an intent to carry out a threat.”

The text of § 2A6.1(b)(1) is ambiguous in its reference to “such threats.” However, the commentary indicates that the applicability of § 2A6.1(b)(1) is not limited to offenses that contain the word “threat” in the statute of conviction. Accordingly, a sentencing court may consider “conduct that occurred prior to or during the offense” that was “substantially and directly connected to the offense, under the facts of the case taken as a whole.”

There is evidence that Jordan threatened to file liens. A “notice” that Jordan sent to the prosecutor asserted that she had agreed that a “lien can be placed against all [of the prosecutor’s] assets, wages, income, ... [and] personal and real property.” A subsequent “Notice and Demand for Payment” stated that the prosecutor must pay $6,534,500 to Jordan “to avoid a consensual lien being placed on assets” of the prosecutor. Jordan took overt actions to carry out these threats by making the filings for which he has been prosecuted. The district court did not err in applying, pursuant to § 2A6.1(b)(1), a six-level increase to the base offense level of 12.

⅜ * ⅜

For the foregoing reasons, we AFFIRM the district court’s judgment.

      . U.S. Sentencing Guidelines. Manual § 2A6.1(b)(1) (U.S. Sentencing Comm'n 2015) (hereinafter U.S.S.G.).

      . Id.

      . United States v. Olguin, 643 F.3d 384, 393 (5th Cir. 2011); United States v. Ferguson, 211 F.3d 878, 882 (5th Cir. 2000).

      . Ferguson, 211 F.3d at 882.

      . Olguin, 643 F.3d at 393.

      . Id. (quoting United States v. Delgado, 256 F.3d 264, 274 (5th Cir. 2001)).

        . United States v. Valle, 538 F.3d 341, 344 (5th Cir. 2008) ("The starting point for interpreting a statute is the language of the statute itself. When construing a criminal statute, we must follow the plain and unambiguous meaning of the statutory language. Terms not defined in the statute are interpreted according to their ordinary and natural meaning ... as well as the overall policies and objectives of the statute.” (quoting United States v. Kay, 359 F.3d 738, 742 (5th Cir. 2004))).

      . 18 U.S.C. § 1521.

      . See United States v. Neal, 776 F.3d 645, 653-54 (9th Cir. 2015); United States v. Reed, 668 F.3d 978, 984-85 (8th Cir. 2012).

      . 668 F.3d at 984.

      . Id.

      . Id.

      . Id. at 984-85.

      . 776 F.3d at 654-55.

        . Id. at 651.

      . Id. at 653; see also id. (“Again, validity is not a prerequisite for violation.”).

      . Id.

      . Id. at 653-54.

      . See id. at 653 ("[T]he statute prohibits documents of the sort used to create liens or encumbrances. The focus is on preventing the harm such documents may cause, rather than focusing on the actual document.”).

        . United States v. Boyd, 773 F.3d 637, 646 (5th Cir. 2014); Brown v. Sudduth, 675 F.3d 472, 482 (5th Cir. 2012); United States v. Ramos-Cardenas, 524 F.3d 600, 610 (5th Cir. 2008) (per curiam).

      . See Tex. Bus. & Com. Code Ann. § 9.501(a)(2) (West); First Nat’l Bank of Denver City v. Brewer, 775 S.W.2d 51, 52-53 (Tex. App.—Amarillo 1989, no pet.) (noting that a party had a perfected interest in assets located in Yoakum County, Texas after filing a financing statement with the Texas Secretary of State).

      . U.S.S.G. § 2A6.1(b)(1) (2015).

      . United States v. Garcia-Gonzalez, 714 F.3d 306, 314 (5th Cir. 2013).

      . Id.

        . § 2A6.1.

      . § 2A6.1(b)(1).

      . 596 Fed.Appx. 535, 537 (9th Cir. 2015) (unpublished).

      . Id. (quoting § 2A6.1(b)(1)).

      . Id. (quoting § 2A6.1(b)(1)).

      . 618 Fed.Appx. 870 (7th Cir. 2015) (unpublished).

      . Id. at 870-71; see Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Small, 618 Fed.Appx. at 871 (citation omitted).

      . See, e.g., 18 U.S.C. § 32(c) (“Whoever will-folly imparts or conveys any threat to do an act....”); id. § 115(b)(4) ("A threat made in violation of' this section shall be punished. ...”); id. § 844(e) (“Whoever ... willfully makes any threat, or maliciously conveys false information knowing the same to be false....”); id. § 871 (“Threats against President and successors to the Presidency”); id. § 876 ("Mailing threatening communications”); id. § 875(c) ("Whoever transmits in interstate or foreign commerce any communication containing any threat....”); id. § 877 ("Mailing threatening communications from foreign country”); id. § 878(a) ("Whoever ... threatens to violate....”); id. § 879 ("Threats against former Presidents and certain other persons”); id. § 1992(a)(10) ("[Attempts, threatens, or conspires to engage in any violation....”); id. § 2280(a)(2) (including "[a] person who threatens to do any act prohibited under” certain other provision of § 2280 within its definition of "[o]ffenses”); id. § 2291(e) (“Whoever knowingly and intentionally imparts or conveys any threat to do an act which would violate this chapter, with an apparent determination and will to carry the threat into execution....”); id. § 2332a(a) ("A person who, without lawful authority, uses, threatens, or attempts or conspires to use, a weapon of mass destruction....”); id. § 2332b(a)(2) ("Whoever threatens to commit an offense under paragraph (1), or attempts or conspires to do so....”); 47 U.S.C. § 223(a)(1)(C)-(E) (prohibiting calls made to threaten or harass); 49 U.S.C. § 46507 ("An individual shall be fined under title 18, imprisoned for not more than 5 years, or both, if the individual ... threatens to violate section 46502(a), 46504, 46505, or 46506 of this title.... ”).

        . See 18 U.S.C. § 1521 ("Whoever files, attempts to file, or conspires to file, in any public record or in any private record which is generally available to the public, any false lien or encumbrance against the real or personal property of an [officer or employee of the United States], on account of the performance of official duties by that individual, knowing or having reason to know that such lien or encumbrance is false or contains any materially false, fictitious, or fraudulent statement or representation, shall be fined under this title or imprisoned for not more than 10 years, or both.”).

      . U.S.S.G. § 2A6.1 cmt. n.1 (2015).

      . 175 F.3d 350 (5th Cir. 1999).

      . Id. at 351.

      . Id. at 351-52.

      . Id. at 353.

      . Id. at 355.

      . Id.

      . U.S.S.G. § 2A6.1 cmt. n. 1 (2015).


author: EDITH BROWN CLEMENT, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Abraham Moses FISCH, also known as Anthony Fisch, Defendant-Appellant
    No. 15-20663 consolidated with 15-20636
    United States Court of Appeals, Fifth Circuit.
    FILED March 14, 2017

      Katherine Lisa Haden, Carmen Castillo Mitchell, Renata Ann Gowie, Assistant U.S. Attorneys, Gerald Paul Doyle, Esq., U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
    Regina Bacon Criswell, Esq., Law Office of Regina.B. Criswell, San Antonio, TX, Norman J. Silverman, Attorney, Silverman Law Group, Houston, TX, for Defendant-Appellant.
    Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
   EDITH BROWN CLEMENT, Circuit Judge.

Abraham Moses Fisch challenges the sufficiency of evidence supporting his convictions for conspiracy, obstruction of justice, money laundering, and tax evasion; the district court’s jury instructions at trial; and pre- and post-trial orders issued by the district court. For the reasons set forth below, we AFFIRM as to all issues except the district court’s denial of Fisch’s ineffective assistance of counsel claims, which may be raised anew in a collateral proceeding.

I

Fisch was a criminal defense attorney. He and former FBI informant Lloyd Williams approached defendants who had criminal charges pending against them. Fisch and Williams told the defendants to pay them large sums of money as purported legal fees. They promised to use the money to pay off high-ranking federal government officials in return for the officials’ getting the defendants’ cases dismissed or resolved on more favorable terms. Fisch and Williams, of course, had no such government contacts that could be paid off to influence pending legal proceedings.

Once their scheme unraveled, Fisch and Williams were indicted for conspiracy, obstruction of justice, money laundering, tax evasion, and impeding administration of the IRS. Malkah Bertman, Fisch’s wife, was indicted for conspiracy and obstruction of justice. Williams pleaded guilty but Fisch and Bertman proceeded to trial.

The indictment included a notice of criminal forfeiture, which identified “[r]eal property located at 9202 Wickford Dr., Houston, Texas 77024” — Fisch’s home — as an asset traceable to criminal proceeds. The government recorded a lis pendens (notice of pending legal action) on the home. Fisch challenged the lis pendens and sought a hearing on the basis that he needed it lifted so he could use the equity in his home to pay for counsel of choice. The district court denied a hearing due to Fisch’s failure to show that he lacked sufficient alternate, available funds to pay for counsel of choice.

The 'case proceeded to trial. The jury found Fisch guilty on eighteen counts (three counts had been dismissed) but not guilty on the count for impeding administration of the IRS. The jury acquitted Bertman.

At the government’s request, the district court entered a forfeiture order in the amount of $1,150,000. The government then moved to amend the forfeiture order to include Fisch’s home as substitute property. The district court granted the motion.

On the day of sentencing, Fisch filed a “motion to determine the effectiveness of trial counsel,” arguing that his trial counsel was ineffective in several respects. The district court orally ruled that trial counsel was not ineffective. Fisch was sentenced to 180 months in prison.

II

Fisch challenges the sufficiency of evidence supporting his convictions for conspiracy to obstruct justice, obstruction of justice, money laundering, and tax evasion. This court’s review of a jury verdict is .“highly deferential.” United States v. McNealy, 625 F.3d 858, 870 (5th Cir. 2010). The court asks whether, “viewing the evidence and the inferences that may be drawn from it in the light most favorable to the verdict, a rational jury could have found the essential elements of the offenses beyond a reasonable doubt.” United States v. Clark, 577 F.3d 273, 284 (5th Cir. 2009).

A. Conspiracy to Obstruct Justice, 18 U.S.C. § 371

“To support a conspiracy conviction under [18 U.S.C.] § 371, the government must prove three elements: (1) an agreement between two or more people to pursue an unlawful objective; (2) the defendant’s knowledge of the unlawful objective and voluntary agreement to join the conspiracy; and (3) an overt act by one or more of the conspirators in furtherance of the conspiracy’s objective.” United States v. Porter, 542 F.3d 1088, 1092 (5th Cir. 2008). “The government must prove the same degree of criminal intent as is necessary for proof of the underlying substantive offense.” United States v. Peterson, 244 F.3d 385, 389 (5th Cir. 2001).

Fisch challenges whether the government proved that he knowingly and voluntarily entered into an agreement to obstruct justice. “Direct evidence of a conspiracy is unnecessary; each element may be inferred from circumstantial evidence.” United States v. Casilla, 20 F.3d 600, 603 (5th Cir. 1994). “An agreement may be inferred from concert of action, voluntary participation may be inferred from a collection of circumstances, and knowledge may be inferred from surrounding circumstances.” United States v. Stephens, 571 F.3d 401, 404 (5th Cir. 2009).

Testimony established that Fisch and Williams met with potential clients together. At such meetings, they discussed the details of their scheme. For example, Elida Sanchez testified that Fisch and Williams told her that her husband, Edilberto Por-tillo, would get out of jail “very soon” through “friends that work in the CIA” if she paid $1.1 million. Similarly, Princewill Njoku testified that Fisch “guaranteed” his case would be dismissed if he and co-defendant Clifford Ubani paid $150,000. The evidence was sufficient to infer a knowing and voluntary agreement between Fisch and Williams to obstruct justice. See Casilla, 20 F.3d at 603 (“Presence and association with other members of a conspiracy, along with other evidence, may be relied upon to find a conspiracy.”).

Fisch also questions the veracity of statements made by the government’s witnesses. But the court is “bound to accept the [jury’s] credibility choices that support th[e] verdict.” United States v. Espinoza, 53 F.3d 1282, 1282 (5th Cir. 1995).

Viewed in the light most favorable to the verdict, the evidence was sufficient for the jury to find that Fisch conspired to obstruct justice.

B. Obstruction of Justice, 18 U.S.C. § 1503

“The elements of obstruction of justice [under 18 U.S.C. § 1503] are: (1) a judicial proceeding was pending; (2) the defendant knew of the judicial proceeding; and (3) the defendant acted corruptly with the specific intent to influence, obstruct, or impede that proceeding in its due administration of justice.” United States v. Sharpe, 193 F.3d 852, 864 (5th Cir. 1999). Fisch concedes that judicial proceedings were pending and that he knew of them. His attack is twofold: first, he argues that the government did not offer sufficient evidence of specific intent to influence, obstruct, or impede the proceedings; and second, he argues that 18 U.S.C. § 1515(c) operates as an affirmative defense to the obstruction charges.

1. Specific Intent to Obstruct Justice

A defendant’s specific intent to obstruct justice “can be proven by showing the defendant’s endeavors had the ‘natural and probable effect of interfering with the due administration of justice.’ ” United States v. Coppin, 569 Fed.Appx. 326, 337 (5th Cir. 2014) (quoting United States v. Aguilar, 515 U.S. 593, 599, 115 S.Ct. 2357, 132 L.Ed.2d 520 (1995)). “[A]n un successful ‘endeavor’ to obstruct justice violates section 1503; justice need not actually have been obstructed.” United States v. Williams, 874 F.2d 968, 981 (5th Cir. 1989).

Evidence showed that Fisch implored criminal defendants not to accept plea agreements in return for false promises to favorably influence the outcome of their cases. As an example, Edilberto Portillo testified that he rejected a plea offer to be sentenced to no more than 80 months in prison “[biased on what Mr. Fisch and Mr. Williams told” his wife. He further testified that he did little to prepare for trial “[bjeeause Mr. Abraham Fisch told me that trial is never going to take place.” In addition, Ezinne Ubani testified that Fisch told her husband, Clifford Ubani, “not [to] take [a] plea” and “kept promising how he’s going to dismiss the case and stuff like that.” Fisch’s false representations clearly had the probable effect of interfering with the administration of justice. See United States v. Moree, 897 F.2d 1329, 1333 (5th Cir. 1990) (“It is hard to imagine a more invidious obstruction of justice' than an offer to bribe officials in control of the judicial system to fix the' result of a trial.”).

Viewed in the light most favorable to the verdict, the evidence was sufficient for the jury to find that Fisch obstructed justice.

2. 18 U.S.C. § 1515(c)

The federal obstruction of justice statute, 18 U.S.C. §§ 1501-1521, contains a “general provision” at Section 1515. It provides, “[T]his chapter does not prohibit or punish the providing of lawful, bona fide, legal representation services in connection with or anticipation of an official proceeding.” 18 U.S.C. § 1515(c). Fisch argues that Section 1515(c) acts- as an affirmative defense to an obstruction of justice charge and that the government must disprove its applicability, but did not do so here.

Fisch did not argue below that the government failed to meet its burden under Section 1515(c). We do not reach this new argument. See N. Alamo Water Supply Corp. v. City of San Juan, 90 F.3d 910, 916 (5th Cir. 1996) (“We will not consider an issue that a party fails to raise in the district court, absent extraordinary circumstances.”); see also United States v. Crawford, 60 Fed.Appx. 520, 532 (6th Cir. 2003) (“Because Crawford raises the § 1515(c) claim for the first time before this Court, the claim is waived.”).

C. Failure to Timely File Income Tax Returns, 26 U.S.C. § 7203

Under 26 U.S.C. § 7203, the government had to demonstrate “proof of failure to file [federal income tax returns] and willfulness in doing so.” United States v. Buckley, 586 F.2d 498, 504 (5th Cir. 1978). Willfulness “is simply the intentional violation of a known legal duty.” Id. (internal quotation marks omitted). Fisch admitted that he intentionally violated a known duty to file. The evidence was sufficient on the income tax counts.

Ill

Fisch challenges whether his Fifth Amendment rights were violated by the denial of a hearing regarding the lis pen-dens on his home. The district court afforded Fisch numerous opportunities to present evidence of his financial inability to pay for counsel of choice without an order lifting the lis pendens. Once Fisch did submit information, it was only “a very brief statement with no supporting documents.” The district court found the submission “scant, conclusory, and insufficient” to show that Fisch lacked alternate, available assets. For example, Fisch continued to practice law but failed to state whether his law practice was continuing to generate income.

Fisch again submitted information to the district court, but this time some of it was illegible. The district court ordered Fisch to resubmit legible information. At this stage, Fisch “elected not to file anything further,” choosing instead to stand by his position that “there is no threshold requirement” of demonstrating financial need. The district court rejected this argument but allowed Fisch yet another chance “to file the information, complete and legible,” otherwise Fisch’s failure would “end this issue.” Fisch declined.

This court has observed “broad agreement that due process requires the district court to hold a prompt hearing at which the property owner can contest [a] restraining order ... at least when the restrained assets are needed to pay for an attorney to defend him on associated criminal charges.” United States v. Melrose E. Subdivision, 357 F.3d 493, 499 (5th Cir. 2004) (citing United States v. Jones, 160 F.3d 641, 645 (10th Cir. 1998)). We have favorably cited Jones, which requires “[a]s a preliminary matter [that] a defendant ... demonstrate to the court’s satisfaction that she has no assets, other than those restrained, with which to retain private counsel and provide for herself and her family.” Jones, 160 F.3d at 647.

We have declined to “elaborate the precise details of the circumstances and showings necessary to trigger a due process hearing” when it was not necessary to do so. Melrose, 357 F.3d at 501 n.5. No such expounding is needed here when Fisch ultimately elected not to file any evidence that would demonstrate his financial need. Fisch chose not to “provid[e] any further documentation pursuant to the court’s directive” and instead “object[ed] to any consideration of his financial status as a prerequisite to a ... hearing.” He did so at his own peril. Even if the lis pendens were a restraint of property triggering due process protection — an issue we need not reach — Fisch decided not to make any showing that “the restrained assets [we]re needed to pay for an attorney.” Id. at 499.

Fisch has not made out a Fifth Amendment violation.

IV

Fisch argues that his Sixth Amendment rights were violated by the government’s seeking a lis pendens on his home as an asset traceable to his criminal proceeds, which he claims the government never could prove. He asserts that the government’s conduct limited his ability to pay for counsel of choice.

As discussed above, Fisch’s decision not to make an evidentiary showing of financial need meant that the district court was not required to hold a traceability hearing. And ultimately the government did not have to establish traceability because it instead asked the district court to order the home forfeitable as substitute property. Because Fisch did not properly raise his specific objection to the government’s motion to forfeit the home as substitute property, see infra Part VII.B, we need not opine here on the propriety of the government’s recording a lis pendens on Fisch’s home for four years but ultimately forfeiting the home as substitute property.

Fisch further asserts that the government made suggestions in bad faith that two of his attorneys below had conflicts of interest so that they would be disqualified. Fisch does not actually appeal the district court’s holding that attorney Norman Sil-verman had a conflict of interest requiring disqualification. And he admits it was attorney Mark Bennett that informed the district court, “I have learned that I have a potential conflict of interest.” Fisch offers no legal support for why his Sixth Amendment rights were violated due to his chosen attorneys’ conflicts of interest.

Fisch has not established a Sixth Amendment violation.

V

Fisch summarily argues that “the entire proceedings were infected by prose-cutorial misconduct.” He cites no specific constitutional right other than a vague reference to “due process and equal protection violations.” Fisch’s argument is not adequately briefed. See United States v. Scroggins, 599 F.3d 433, 446-47 (5th Cir. 2010). At any rate, because Fisch “did not preserve error by objecting to these instances of alleged prosecutorial misconduct at trial,” the court “review[s] these claims only for plain error.” United States v. Tomblin, 46 F.3d 1369, 1386 (5th Cir. 1995). Fisch has not made the requisite showing.

VI

Fisch raises two challenges to the district court’s jury instructions.

A. Failure to Instruct Jury on 18 U.S.C. § 1515(c)

Fisch challenges the district court’s failure to instruct the jury that the government had the burden to prove beyond a reasonable doubt that Fisch’s conduct was not lawful, bona fide legal representation under 18 U.S.C. § 1515(c). This issue was not raised before the district court, so this court reviews only for plain error. Fisch’s perfunctory argument does not include any factual support to satisfy a plain error showing. Moreover, the district court’s jury instructions on obstruction of justice, which tracked Fifth Circuit Pattern Jury Instruction (Criminal Cases) 2.63A, provided the essence of Fisch’s requested charge. See United States v. St. John, 267 Fed.Appx. 17, 22 (2d Cir. 2008) (rejecting similar argument under plain error review because jury instruction on specific intent to obstruct justice “exclude[d] the possibility of bona fide legal advice constituting criminal behavior”).

B. Deliberate Ignorance

Fisch next argues that the district court abused its discretion in instructing the jury on deliberate ignorance. The government asked the district court to include a deliberate ignorance instruction on the obstruction of justice counts that modeled Fifth Circuit Pattern Jury Instruction (Criminal Cases) 1.37A. Fisch objected. On appeal, Fisch argues that there was insufficient evidence to warrant the instruction. This court reviews for abuse of discretion. United States v. Fuchs, 467 F.3d 889, 901-02 (5th Cir. 2006).

A deliberate ignorance instruction provides that the jury may find that a defendant knew of a fact if he deliberately shielded himself from that fact. The instruction must have a proper evidentiary basis, which is present “if the record supports inferences that (1) the defendant was subjectively aware of a high probability of the existence of illegal conduct; and (2) the defendant purposely contrived to avoid learning of the illegal conduct.” United States v. Freeman, 434 F.3d 369, 378 (5th Cir. 2005) (internal quotation marks omitted). In determining whether the evidence supports the charge, the court must view the evidence in the light most favorable to the government. Id. This court has “consistently approved a deliberate ignorance instruction in [conspiracy] cases.” Sharpe, 193 F.3d at 872.

Fisch challenges the sufficiency of the evidence on the second element: whether the record supported an inference that he purposely sought to avoid learning of illegal conduct. Fisch’s testimony at trial showed that he took what Williams said at face value, declining to ask questions about the legality of the proposed conduct. For example, Fisch testified that “[Williams] kept me out of it. He kept me in the dark basically as far as what he was doing and how he was doing it. I didn’t ask a lot of questions.... Mr. Williams basically kept me in the dark. Whatever I knew is what he told me.” He repeatedly testified that he “didn’t ask” specific questions of Williams. Fisch’s testimony supports the instruction. See United States v. Lara-Velasquez, 919 F.2d 946, 951 (5th Cir. 1990) (holding that instruction is appropriate where defendant’s actions reflect demeanor of “[d]on’t tell me, I don’t want to know,” so jury can consider defendant’s “charade of ignorance” as circumstantial proof of knowledge). The district court did not abuse its discretion.

VII

Fisch appeals several aspects of the district court’s post-trial forfeiture orders. In particular, he challenges: whether the district court complied with Federal Rule of Criminal Procedure 32.2; whether the district court erred in forfeiting the home as substitute property; and whether the district court erred in including $450,000 in the money judgment.

A. Federal Rule of Criminal Procedure 32.2

Fisch argues that the district court did not comply with Federal Rule of Criminal Procedure 32.2. The Rule states in part that the district court must determine before jury deliberations whether “either party requests”, that the jury be retained to determine the forfeitability of specific property, in the event that the jury returns a guilty verdict. Fed. R. Crim. P. 32.2(b)(5)(A). Fisch admits he did not make a “request” before jury deliberations and that review is for plain error. United States v. Valdez, 726 F.3d 684, 698-99 (5th Cir. 2013).

Assuming that the district court clearly erred in not inquiring of the parties whether they wanted the jury to be retained, Fisch still must show that the error affected his substantial rights, i.e., it was prejudicial. Fisch has the burden of establishing “a reasonable probability that any forfeiture imposed would have been less than” what actually was imposed. United States v. Marquez, 685 F.3d 501, 510 (5th Cir. 2012). The difference, Fisch argues, is that the jury would have found that his home was not traceable to criminal proceeds. But that would not have been the case, as the government eventually sought a forfeiture order only in the form of a money judgment. He makes no argument as to how the money judgment would have differed. Fisch does not satisfy a plain error showing. Cf. id. (“Marquez simply focuses on the district court’s errors independent of any prejudice they may have caused”).

B. Forfeiture of Home as Substitute Property

Fisch challenges the government’s pre-trial tactic of alleging that his home was forfeitable as an asset traceable to his criminal proceeds under 18 U.S.C. § 981 and then, post-trial, alleging that the home was forfeitable as substitute property under 21 U.S.C. § 858(p). He also argues that the government failed to meet the substitute property criteria of 21 U.S.C. § 853(p).

These arguments were not properly raised below. Fisch’s counsel was given an opportunity at a combined forfeiture/sentencing hearing to object to the government’s motion to amend the forfeiture order to include substitute property. Although Fisch’s counsel did not have an ideal opportunity to formulate and lodge objections — as the government’s forfeiture motion was served on the morning of the hearing — counsel did not raise either of the specific arguments that Fisch now raises on appeal. Under Federal Rule of Criminal Procedure 51(b), Fisch’s claims were not preserved and are reviewed now only for plain error. See Puckett v. United States, 556 U.S. 129, 133-35, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (discussing “contemporaneous-objection rule”). Fisch makes no attempt to satisfy plain error review, and we do not find it satisfied.

C. Money Judgment

Last, Fisch argues that the money judgment included $450,000 not found by the jury beyond a reasonable doubt. The court reviews the district court’s findings of fact as to forfeiture for clear error. United States v. Olguin, 643 F.3d 384, 398 (5th Cir. 2011). Elida Sanchez testified that her son gave Fisch $450,000 in cash stored in a Stetson hat box. And her son testified that he put the hat box containing $450,000 in Fisch’s car. The district court’s finding that there was “extensive evidence” that the money was paid to Fisch was not clearly erroneous.

VIII

Finally, Fisch contends that trial counsel was ineffective. On the morning of sentencing, Fisch filed a “motion to determine the effectiveness of counsel,” arguing that his trial counsel, Michael McCrum, was ineffective in several respects. Fisch argued that McCrum: (1) failed to interview key government and defense witnesses; (2) failed to investigate or pursue potential defenses; (3) failed to introduce impeachment evidence; (4) failed to make evidentiary offers of proof to admit exhibits; (5) failed to request a defensive jury instruction on 18 U.S.C. § 1515(c); and (6) refused to request a trial continuance after falling ill during trial and undergoing surgery. Fisch submitted exhibits supporting his claims, including affidavits and text message conversations between him and McCrum.

The district court orally ruled on the motion without requesting further briefing or holding an evidentiary hearing. The government concedes that Fisch was not able to develop his claims below, which prohibits appellate review. We conclude that the factual issues underlying Fisch’s claims of ineffective assistance cannot be determined on the current record. The Supreme Court has noted that such factual issues are best resolved by the district court on 28 U.S.C. § 2255 review. See Massaro v. United States, 538 U.S. 500, 505, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). Consequently, we decline to address Fisch’s ineffective assistance claims on direct appeal. Nothing about our affir-mance of Fiseh’s convictions affects Fisch’s right to bring ineffective assistance of counsel claims — including those that were stated in Fisch’s motion below — in a timely § 2255 proceeding.

IX

We AFFIRM as to all issues except the district court’s denial of Fisch’s ineffective assistance of counsel claims, which may be raised anew in a timely § 2255 proceeding. In permitting ineffective assistance to be raised collaterally, we express no view on the merits of that claim.

      . Fisch argues that if the court reverses on the conspiracy to obstruct justice and obstruction of justice convictions, it too must reverse on the conspiracy to commit money laundering and money laundering convictions. Because the evidence was sufficient on the relevant counts, this argument fails.

      . Instead, Fisch filed a notice of appeal, which he subsequently dismissed. In his motion to dismiss that appeal, Fisch stated that he "d[id] not intend to pursue the appeal to conclusion.”

      . In contesting whether any threshold evidentiary showing was required, Fisch cites a Supreme Court decision, Kaley v. United States, - U.S. -, 134 S.Ct. 1090, 188 L.Ed.2d 46 (2014). But he relies on the dissenting opinion and oral argument transcript rather than the Court's majority opinion. As the district court noted, the Court in Kaley did not address what a threshold evidentiary showing entails.

      .Fisch also briefly argues that the lis pendens was a seizure requiring probable cause under the Fourth Amendment. This argument was not raised below. We review an unpreserved claim only for plain error, and Fisch fails to argue, much less show, that the elements of plain error review are met.

      . The district court’s oral ruling only specifically addresses Fisch's claim that McCrum was ineffective in "fail[ing] to call and to investigate [certain] FBI agents.”


text:
    Robert E. MOSS, Plaintiff-Appellant v. HARRIS COUNTY CONSTABLE PRECINCT ONE; Alan Rosen, Constable, Harris County Constable Precinct One; Harris County, Defendants-Appellees
    No. 16-20113
    United States Court of Appeals, Fifth Circuit.
    FILED March 15, 2017

      Karen Greer Shropshire, Greer & Shropshire, L.L.P., Dallas, TX, for Plaintiff-Appellant.
    William S. Helfand, Charles Teilhard Jeremiah, Esq., Chamberlain, Hrdlicka, White, Williams & Aughtry, William S. Helfand, Lewis, Brisbois, Bisgaard & Smith, L.L.P., Charles Teilhard Jeremiah, Esq., Holland & Knight, L.L.P., Bobby Nick Turner, Assistant County Attorney, County Attorney’s Office for the County of Harris, Houston, TX, for Defendants-Ap-pellees.
    Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges.
   HAYNES, Circuit Judge:

Robert E. Moss appeals the district court’s grant of summary judgment to Harris County on his discrimination and retaliation claims under the American with Disabilities Act (“ADA”) and the Texas Labor Code (“TLC”), and on his First Amendment retaliation claim under 42 U.S.C. § 1983. For the reasons explained below, we AFFIRM.

I. Background

In this wrongful termination case, Moss sued his former employer, Harris County, after Constable Alan Rosen terminated Moss’s employment while he was on leave recovering from back surgery. Moss claims that Rosen wrongfully terminated his employment for two unrelated reasons: (1) his disability and (2) his political speech. Prior to his termination in April 2013, Moss had worked as a deputy constable for Harris County Precinct One for sixteen years.

In 2012, Rosen was seeking elected office as Constable for Harris County Precinct One. In August 2012, at least one of Rosen’s political opponents informed Moss of a potential chemical leak at a company in which Rosen had an ownership interest. Moss visited the site while off duty, took pictures of barrels that appeared to be leaking hazardous chemicals, and then, in accordance with his job duties, reported the potential chemical leak to the Precinct One Environmental Division. Later that same week, upon the request of his supervisor, Lieutenant Albert Lui, Moss discussed the pictures with the Houston Chronicle newspaper. He also told at least one co-worker that he was not supporting Rosen for constable, and told several coworkers about the potential chemical leak, a possible “cover up,” and that Rosen had not completed all of his law enforcement classes.

At some point after the investigation into the potential chemical leak began, Ro-sen was made aware of the complaint against his company. Deputy Joe Danna, who was one of Rosen’s political opponents, claims that, on October 29, 2012, during early voting, Rosen approached him about Moss. Rosen asked why Moss was so upset over “a little chemical spill” that had already been cleaned up, and claimed that Moss was “out of control” and Deputy Danna needed to do something about it. Similarly, according to Moss, a Rosen supporter called Moss and told him not to get involved in Rosen’s election bid for constable. Moss understood the extent of his involvement in the constable’s race to be the pictures he took evidencing the potential chemical leak.

While all of this was happening, Moss told a Precinct One human resources representative that he needed back surgery to treat a persistent back condition stemming from an earlier job. Moss believed he had sufficient Family and Medical Leave Act (FMLA) time and accrued leave benefits to remain on leave until June 1, 2013. He took leave under the FMLA on November 7, 2012, and remained on leave after his FMLA leave expired. In January 2013, Moss’s doctor instructed him and his employer that Moss could not return to work for another six months. During his leave, Moss discussed with Lieutenant Lui the possibility of moving to a light duty position, but there is no evidence that Moss was ever offered a light duty job.

Rosen was eventually elected constable and took office on January 1, 2013. On March 25, 2013, Moss sent a letter to Constable Rosen requesting to retire effective May 31, 2013. In response, on April 16, 2013, Rosen terminated Moss by letter, claiming that Moss had “exhausted all of [his] FMLA comp time, sick time, vacation time and all other acquired time.” Moss’s termination was reported to the Texas Commission on Law Enforcement as a “general discharge” rather than an “honorable discharge,” which Moss disputed but did not appeal. Moss was also denied retirement benefits following his termination.

On May 17, 2013, Moss applied for, and later received, disability benefits under Social Security, testifying he had been permanently disabled as of April 16, 2013, the date he was fired. Just over a year later, he filed this lawsuit against both Rosen, in his individual and official capacity, and Harris County. Moss’s Second Amended Complaint alleged breach of contract, disability discrimination in violation of Title I, Title II, and Title V of the ADA, along with analogous TLC provisions, and Section 1983 claims for free speech and due process violations under the First and Fourteenth Amendments of the U.S. Constitution, as well as violations of the Contract Clause of the U.S. Constitution. Moss voluntarily dismissed his claims against Rosen in his individual capacity. Harris County moved for summary judgment, and the district court granted Harris County’s motion in all respects. Moss appeals the adverse judgment on the disability discrimination claims under Title I, II, and V of the ADA, analogous TLC claims, and the Section 1983 free speech claim under the First Amendment.

II. Standard of Review

“This court ‘reviews de novo the district court’s grant of summary judgment, applying the same standard as the district court.’ ” Feist v. La., Dep’t of Justice, Office of the Attorney Gen., 730 F.3d 450, 452 (5th Cir. 2013) (quoting Fabela v. Socorro Indep. Sch. Dist., 329 F.3d 409, 414 (5th Cir. 2003)). Summary judgment is appropriate if the moving party can show that “there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court also views “all facts and evidence in the light most favorable to the non-moving party.” Juino v. Livingston Par. Fire Dist. No. 5, 717 F.3d 431, 433 (5th Cir. 2013) (citation omitted). However, where the non-movant is the party who would have the burden of proof at trial, that party must point to evidence supporting its claim that raises a genuine issue of material fact. Tran Enters., LLC v. DHL Exp. (USA), Inc., 627 F.3d 1004, 1010 (5th Cir. 2010).

III. Discussion

A. ADA and TLC Claims

i. Title I Discrimination and Failure-to-Accommodate Claims

Moss maintains that Harris County violated Title I of the ADA when it terminated him while he was on extended leave recovering from back surgery. We affirm the district court’s dismissal of Moss’s Title I claims because Moss failed to provide evidence showing-that he was qualified for his job at the time of his termination.

“The ADA prohibits an employer from ‘discriminating] against a qualified individual on the basis of disability,’ by, among other things, terminating an individual’s employment.” Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476, 479 (5th Cir. 2016) (alteration in original) (quoting 42 U.S.C. § 12112(a)). “To establish a prima facie discrimination claim under the ADA, a plaintiff must prove: (1) that he has a disability; (2) that he was qualified for the job; [and] (3) that he was subject to an adverse employment decision on account of his disability.” E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 697 (5th Cir. 2014) (alteration in original) (quoting Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 853 (5th Cir. 1999)).

The ADA also “requires an employer to make ‘reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability....’” Delaval, 824 F.3d at 481 (quoting 42 U.S.C. § 12112(b)(5)(A)). To prevail on a failure-to-accommodate claim, the plaintiff must show “(1) [he] is a ‘qualified individual with a disability;’ (2) the disability and its consequential limitations were ‘known’ by the covered employer; and (3) the employer failed to make ‘reasonable accommodations’ for such known limitations.” Feist, 730 F.3d at 452.

A plaintiff can establish that he is “qualified” by showing that “either (1) [he] could perform the essential functions of the job in spite of [his] disability,” or “(2) that a reasonable accommodation of [his] disability would have enabled [him] to perform the essential functions of the job.” LHC Grp., 773 F.3d at 697 (quoting Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1093 (5th Cir.1996)). “Time off, whether paid or unpaid, can be a reasonable accommodation, but an employer is not required to provide a disabled employee with indefinite leave.” Delaval, 824 F.3d at 481. Furthermore, reassignment to a different job may be a reasonable accommodation, but “[t]he plaintiff bears the burden of proving that an available position exists that he was qualified for and could, with reasonable accommodations, perform.” Jenkins v. Cleco Power, LLC, 487 F.3d 309, 315 (5th Cir. 2007) (citation omitted); see also Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997) (“For the accommodation of a reassignment to be reasonable, it is clear that a position must first exist and be vacant.”).

Here, Moss failed to provide evidence showing that he was qualified for the job at the time of his termination. Moss argues that his sixteen years of honorable performance as a deputy constable show that he was qualified prior to his initial request for leave and that he remained qualified during his leave. We do not question whether Moss was qualified for his job prior to taking leave, instead the question is whether he was qualified at the time of his termination. See Amsel v. Tex. Water Dev. Bd., 464 Fed.Appx. 395, 400 (5th Cir. 2012). Instead of supporting Moss’s claim, the evidence in the record shows that at the time of Moss’s termination on April 16, 2013, Moss had been on leave since November 7, 2012, he had exhausted all of his FMLA leave, and his doctor had instructed him and his employer that he was incapable of returning to work until around July 2013. Accordingly, Moss was medically incapable of performing his duties as a deputy constable at the time of his termination and thus was not a qualified individual under the ADA, unless some reasonable accommodation can be identified that would have enabled him to perform the .job. See, e.g., id. (noting that a plaintiff who “was completely unable to come to work at the time of the adverse employment action” was “only ‘qualified’ if he could do the job with reasonable accommodation”); Reed v. Petroleum Helicopters, Inc., 218 F.3d 477, 480-81 (5th Cir. 2000) (holding that the plaintiff could not perform the essential functions of the job at the time of her termination because during her leave she was “medically unable to perform the duties of her job” and shortly after she was terminated her “physician stated that she could not work”); Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996) (holding that the plaintiff was “not a ‘qualified individual with a disability’ under the ADA” because he could not attend work while recuperating from an ankle surgery).

Moss argues that he remained qualified during his leave. because (1) his leave would last only “through May 31, 2013,” and thus was not indefinite; and, as an alternative accommodation, (2) he could “return to work in a light duty position before that date.” As to the first possible accommodation that Moss identifies, the evidence shows that in addition to taking leave until May 31, 2013, Moss would also retire on that date. That is, Moss would take leave and never return, which is not a reasonable accommodation and would never enable him to perform the essential functions of his job. Moreover, the record does not indicate, and Moss does not argue, that Moss was willing to forgo retirement and return to 'his job as a deputy constable upon medical clearance from his doctor. Although taking leave that is limited in duration may be a reasonable accommodation to enable an employee to perform the essential functions of the job upon return, taking leave without a specified date to return or, in this case, with the intent of never returning is not a reasonable accommodation. See Delaval, 824 F.3d at 481; Rogers, 87 F.3d at 759-60 (“[R]ea-sonable accommodation is by its terms ... that which presently, or in the immediate future, enables the employee to perform the essential functions of the job in question.” (quoting Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995))).

As to the second possible accommodation that Moss identifies, Moss failed to present any evidence that a light duty position, which Moss conceded was a different job than what he had, was vacant at the time of his termination or that he was capable of performing the essential functions of a light duty position. There is evidence that Moss discussed with Lieutenant Lui whether he might be capable of working a light duty position, but nothing showing that he, or his doctor, ever concluded that, despite his disability, he was capable of performing the essential functions of a light duty position. Even if he was capable of performing the work, Moss would still need to provide evidence supporting a finding that there was a light duty position available to be filled, which he did not do. Thus, Moss did not meet his burden of raising a genuine issue of material fact about whether transferring him to a light duty position would be a reasonable accommodation. See Foreman, 117 F.3d at 810.

It is the plaintiffs burden to show that he is qualified under the ADA. Because Moss failed to provide evidence showing any available reasonable accommodations that would have enabled him to perform the essential functions of his job, he cannot establish that he was qualified under the ADA at the time of his termination. Accordingly, we affirm the summary judgment on Moss’s disability discrimination and failure-to-accommodate claims.

ii. Title V Retaliation Claim

Moss argues that, unlike discrimination claims under the ADA, retaliation claims do not require an employee to be qualified for the job. We disagree. In the context of the ADEA, we have explained that “[r]etaliation claims are nothing more than a protection against discrimination,” and because, in discrimination claims we “consistently have required that a plaintiff be qualified for the job he seeks, it would be illogical not to require one here.” Holtzclaw v. DSC Commc’ns Corp., 255 F.3d 254, 260 (5th Cir. 2001) (footnote omitted). This same reasoning applies to retaliation claims under the ADA. See Lambus v. City of Jackson Fire Dep’t, 54 Fed.Appx. 414, 2002 WL 31718479, at *3 (5th Cir. 2002) (citing Holtzclaw to support the requirement that a plaintiff must show he is qualified for the job in question to establish a prima facie retaliation claim under the ADA). Accordingly, because Moss failed to raise a material issue of fact on the question of whether he is qualified for his job under the ADA, he also failed to make out a prima facie retaliation claim under the ADA. See id. (affirming the dismissal of an ADA retaliation claim because the plaintiff failed to show that he was qualified for the job).

iii. Title II Discrimination Claim

Moss asserts that the district court erred when it dismissed his Title II claims after concluding that Title II of the ADA does not apply to employment discrimination claims. We have held, however, that “[u]nlike Title I of the ADA, Title II does not create a cause of action for employment discrimination.” Taylor v. City of Shreveport, 798 F.3d 276, 282 (5th Cir. 2015) (citation omitted). All of Moss’s ADA claims are based on employment discrimination, and Moss presents no evidence that Harris County discriminated against him outside of the employer-employee context, or that Harris County is not a covered entity under the ADA. Accordingly, we affirm the district court’s dismissal of Moss’s Title II claims.

B. Section 1983 First Amendment Claim

In addition to his disability claims, Moss also maintains that Harris County violated his First Amendment rights because he was allegedly fired in retaliation for statements made in opposition to Ro-sen’s campaign for constable. The district court found that Moss’s speech was not protected by the First Amendment because he spoke as an employee rather than as a citizen. We affirm the judgment as to Moss’s First Amendment claims because, to the extent he was not speaking as an employee, he failed to provide evidence showing that he was terminated because of his protected speech.

“To establish a § 1983 claim for employment retaliation related to speech, a plaintiff-employee must show: (1) he suffered an adverse employment action; (2) he spoke as a citizen on a matter of public concern; (3) his interest in the speech outweighs the government’s interest in the efficient provision of public services; and (4) the speech precipitated the adverse employment action.” Anderson v. Valdez, 845 F.3d 580, 590 (5th Cir. 2016) (quoting Nixon v. City of Houston, 511 F.3d 494, 497 (5th Cir. 2007)), reh’g denied, 2017 U.S. App. LEXIS 3949 (5th Cir. Jan. 10, 2017). It is well settled that “the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate,” Heffernan v. City of Paterson, — U.S. -, 136 S.Ct. 1412, 1417, 194 L.Ed.2d 508 (2016), including when political preferences are discussed with co-workers, see Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 2008). It is also clear, however, that when an employee makes statements pursuant to his job duties, he is speaking as an employee and his speech is not protected by the First Amendment. Lane v. Franks, — U.S. -, 134 S.Ct. 2369, 2378, 189 L.Ed.2d 312 (2014) (citing Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)).

The evidence shows that Moss, pursuant to his official duties as a deputy constable, reported potential violations of environmental regulations to his superiors and the Precinct One Environmental Enforcement Division. Moreover, at the request of his supervisor, Moss spoke to the Houston Chronicle about the potential violations. We agree with the district court that Moss was speaking as an employee in both instances, and Moss does not appear to contest this finding on appeal. Rather, Moss argues, and the evidence supports, that he “discussed politics with his co-workers when he opposed Rosen during the 2012 campaign.” For example, the evidence shows that Moss told at least one co-worker that he did not support Rosen for constable, and that he talked to numerous coworkers about Rosen and a potential “cover up.”

Even if this additional evidence were sufficient to create a fact issue as to whether Moss spoke as a citizen, see Davis, 518 F.3d at 312 (identifying political discussions with co-workers as “prototypical protected speech by public employees”), Moss’s First Amendment claim would still fail to survive summary judgment because the evidence does not support a finding that his political discussions with co-workers precipitated his termination. Rosen testified that he had no knowledge of Moss’s speech, and Moss fails to point to any evidence on appeal indicating otherwise. Moss presents evidence showing that: Rosen knew about a law enforcement investigation in response to a complaint that had been filed against his company; Rosen asked another deputy constable why Moss was so upset about the apparent chemical spill and told him that Moss was “out of control”; and a Rosen supporter told Moss not to get involved with Rosen’s campaign for constable. When Moss was asked about his involvement with the race for constable as it related to the Rosen supporter’s comment, Moss said his only involvement was taking the pictures that formed the basis of his formal complaint.

Considering all of this evidence together in the light most favorable to Moss, it might support a finding that Rosen knew that Moss was the person responsible for submitting a formal complaint about Ro-sen’s business and was upset with Moss for his actions. But none of the evidence suggests that Rosen knew about Moss’s political discussions with co-workers, or that Rosen retaliated against Moss for his political discussions. Absent evidence supporting a causal nexus between Moss’s political discussions and his termination, Moss’s First Amendment claim cannot be sustained. We therefore affirm the summary judgment on Moss’s First Amendment claim. See United States v. Real Property, 123 F.3d 312, 313 (5th Cir. 1997) (“It is well-settled ... that we will not reverse a judgment of the district court if it can be affirmed on any ground, regardless of whether the district court articulated the ground.”).

AFFIRMED.

      . Although Amsel is not "controlling precedent,” it "may be [cited as] persuasive authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5th Cir. R. 47.5.4).

      . Moss also argues that “continued employment in his own Deputy Constable position” would be a reasonable accommodation, but we fail to see how this is an accommodation at all, let alone a reasonable accommodation. As already discussed, at the time of Moss’s termination, he was unquestionably incapable of performing the essential functions of his job.

      . Moss’s failure to present facts demonstrating that he was qualified under the ADA forecloses his argument that Harris County impermissibly withdrew from an interactive process when it terminated his employment. Employers violate the ADA when their “unwillingness to engage in a good faith interactive process leads to a failure to reasonably accommodate an employee.” Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d 108, 112 (5th Cir. 2005) (citation omitted). Harris County’s termination of Moss could not lead to a failure to reasonably accommodate him when Moss cannot identify any reasonable accommodations that would have enabled' him to perform the essential functions of his job.

      . The district court also dismissed Moss's failure-to-accommodate, wrongful discharge, and retaliation claims brought, under the TLC. On appeal, Moss argues that the TLC claims should be reversed for the same reasons the ADA claims should be reversed because TLC claims are evaluated under the same analytical framework as claims brought under the ADA. Therefore, we affirm the dismissal of Moss’s analogous TLC claims for the same reasons we affirm the dismissal of his ADA claims.

      . Moss argues that even though Harris County is a covered entity under Title I and Title II of the ADA, Constable Rosen, in his official capacity, is not a covered entity under Title I, and we should therefore create a narrow exception permitting application of Title II in instances where Constable Rosen engaged in employment discrimination. It is well settled, however, that "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office.” McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 414 (5th Cir. 2004) (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)). "Only for the purposes of the Eleventh Amendment are 'official-capacity actions for prospective relief ... not treated as actions against the State.’ ” Id. (quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985)). Moreover, Title I of the ADA defines "covered entity” as an "employer,” 42 U.S.C. § 12111(2), and defines employer to include "any agent” of the employer, id. § 12111(5)(a). Rosen, acting in his official capacity, was indisputably an agent of Harris County. See McCarthy, 381 F.3d at 414. Indeed, elsewhere in his brief, Moss claims that he "does not challenge the district court’s holding that Harris County was the real party in interest for Alan Rosen acting in his official capacity.”