Eric Borcik v. Crosby Tugs, L.L.C.
No. 2016-1372
United States Court of Appeals, Fifth Circuit
May 3, 2017
2017 WL 1716226 | 656 Fed. Appx. 681
Miles Paul Clements, Heather Ann McArthur, Esq., Frilot, L.L.C., New Orleans, LA, for Defendant-Appellee.
Before REAVLEY, JOLLY, and ELROD, Circuit Judges.
PER CURIAM:
Eric Borcik brought this whistleblower suit against Crosby Tugs, alleging that Crosby had fired him in retaliation for reporting environmental violations. Under Louisiana law, Borcik can only recover if he reported the violation in “good faith.”
On appeal, we determined that we were not in a position to make an Erie guess as to the meaning of “good faith” and certified the following question to the Louisiana Supreme Court:
What is the meaning of “good faith” as that term is used in the Louisiana Environmental Quality Act,
Louisiana Revised Statutes 30:2027 ?
Borcik v. Crosby Tugs, L.L.C., 656 Fed. Appx. 681, 685 (5th Cir. 2016). The Louisiana Supreme Court accepted the question and answered it as follows:
The term “good faith,” as used in
R.S. 30:2027 , means an employee is acting with an honest belief that a violation of an environmental law, rule, or regulation occurred.
Borcik v. Crosby Tugs, L.L.C., 2016-1372, --- So.3d ---, 2017 WL 1716226 (La. 5/3/17).
Based on the definition of the term provided by the Louisiana Supreme Court, the district court erred by instructing the jury that “good faith” required more than “an honest belief that a violation of an environmental law, rule, or regulation occurred.”
Accordingly, we remand for such orders and further proceedings as the district court, in its discretion, deems necessary and appropriate.
REMANDED.
UNITED STATES of America, Plaintiff-Appellee, v. Henry Korvett BAMS, Defendant-Appellant.
No. 16-41197
United States Court of Appeals, Fifth Circuit.
FILED June 1, 2017
Albert John Charanza, Jr., Counsel, Charanza Law Office, P.C., Lufkin, TX, Jamie D. Matuska, Matuska Law Firm, Nederland, TX, for Defendant-Appellant.
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Henry Bams appeals his convictions of conspiracy to possess with intent to distribute cocaine and use of an interstate facility in aid of racketeering. He contends that certain evidence should have been suppressed and that there was insufficient evidence for conviction. He also raises various challenges to his sentence. Because we find no reversible error, we affirm.
I.
A.
Bams and Frederick Mitchell were stopped by Officer Dale Baggett in Nacogdoches County, Texas, for speeding. Bams was the driver, and when Baggett approached the vehicle, he detected a strong odor of marihuana and saw that Bams‘s eyes were bloodshot. Baggett asked Bams and Mitchell about their travel plans, and they gave conflicting answers. He asked Mitchell whether there was any contraband in the car, and Mitchell said no. Baggett then asked whether there was any luggage, and Mitchell said he had a blue duffel bag and Bams had an orange Nike bag, both of which were in the trunk. After a search of the vehicle, Baggett found the bags Mitchell had described and discovered five plastic bags of cash in them. The currency had been separated into stacks wrapped by rubber bands. Mitchell stated that the money was his but that he was unsure how much there was. A later count established $253,341.
Bams and Mitchell were arrested for money laundering, and the cash was seized. Several days later, the district attorney reached a settlement with Bams and Mitchell, whereby they agreed to forfeit $100,000 of the seized cash; the county returned the remaining currency to them. That returned money was ultimately deposited into an account owned by Bams.
Several weeks later, Bams and Mitchell were stopped by Officer Adam Pinner in Arkansas for making an unsafe lane change. Bams was driving the vehicle, which was registered to him, and Mitchell was the only passenger. When Pinner asked Bams for his license, he noticed that Bams‘s hands were shaking and that he appeared nervous. Pinner also saw that one of the rear quarter panels appeared to have been tampered with, that there was a single key in the ignition, and that there were energy drinks in the vehicle. Pinner testified that those observations were consistent with drug trafficking. After receiving consent from Bams, Pinner searched the vehicle and found ten kilograms of cocaine concealed within two false compartments in the rear quarter panels.
Bams and Mitchell were indicted for (1) conspiracy to possess with intent to distribute cocaine hydrochloride, in violation of
The presentence report (“PSR“) classified Bams as a career offender and thus calculated his offense level as 37 and his criminal-history category as VI, yielding a guideline range of 360 months to life. U.S. Sentencing Guidelines Manual (“U.S.S.G.“) Ch. 5, Pt. A (Sentencing Table). The PSR recommended 360 months for the Section 846 conviction and 60 months for the Section 1952 conviction.1 The district court accepted the PSR in its entirety but granted Bams‘s motion for a downward departure, sentencing Bams to 240 months on the first count and 60 months on the second, to run concurrently.
II.
Bams contends that the district court erred in denying his motion to suppress evidence obtained from the Arkansas stop. “In reviewing a district court‘s denial of a motion to suppress, we review the district court‘s findings of fact for clear error and its conclusions of law de novo.”2 “In reviewing findings of fact, we view the evidence in the light most favorable to the party prevailing below, which in this case is the Government.”Id. When determining reasonable suspicion, “we must ‘give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.‘”3
“We analyze the constitutionality of a traffic stop using the two-step inquiry set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).” Andres, 703 F.3d at 832 (citation partially omitted). At the first step, “we determine whether the stop was justified at its inception.” Id. “For a traffic stop to be justified at its inception, an officer must have an objectively reasonable suspicion that some sort of illegal activity, such as a traffic violation, occurred, or is about to occur, before stopping the vehicle.” Id. Reasonable suspicion can rest upon a mistake of law or fact if the mistake is objectively reasonable.4 Assuming the stop was justified, we move to the second step, where we determine “whether the officer‘s subsequent actions were reasonably related in scope to the circumstances that justified the stop of the vehicle in the first place.” Id. (quotation marks omitted). “A traffic stop must be temporary and last no longer than is necessary to effectuate the purpose of the stop, unless further reasonable suspicion, supported by articulable facts, emerges.” Id. (quotation marks omitted).
Bams challenges the Arkansas stop on both prongs of Terry. Each of those challenges fails.
On the first prong, Bams maintains that Pinner did not have reasonable suspicion that Bams had engaged in any illegal activity. The government counters that Pinner had reasonable suspicion to stop Bams because he had violated
Bams does not dispute Pinner‘s description of the events. Instead, he disagrees with Pinner‘s interpretation of the statute.
No Arkansas court has construed the meaning of “safely clear” in Section 27-51-306. But even assuming that Pinner‘s interpretation were incorrect, his understanding was “objectively reasonable.” Heien, 135 S.Ct. at 536. Section 27-51-306 does not provide a precise number of feet. That imprecision is presumably by design, since the “safe” distance may vary depending on the relative speeds of the vehicles, road conditions, and the like. The statute appears to leave to the officer the task of deciding when a vehicle is “safely clear.” In any event, Pinner did not base his belief merely on his experience; he also considered Section 27-51-305, which does provide a specific distance: two hundred feet. Given that Bams was overtaking a tractor-trailer, Pinner could reasonably use Section 27-51-305 to inform the meaning of “safely clear.”
Bams‘s counterarguments are unavailing. First, he points to other Arkansas statutes that require overtaken vehicles to yield to overtaking vehicles and for overtaking vehicles to return to the right lane within one hundred feet of a vehicle approaching from the opposite direction. See
B.
Bams additionally claims that the stop, even if initially justified, does not pass muster under the second prong of Terry. But his challenge is narrow. He concedes that he consented to a search and does not dispute that his consent was vol-
Bams is incorrect. He relies on United States v. Dortch, 199 F.3d 193 (5th Cir. 1999), United States v. Santiago, 310 F.3d 336 (5th Cir. 2002), and United States v. Jenson, 462 F.3d 399 (5th Cir. 2006), but those cases are inapposite. In each of them, we held that a detention had been unnecessarily prolonged because the officers had detained a vehicle after the computer checks were concluded—thus terminating the reasonable suspicion that had initially justified the traffic stop—and before additional reasonable suspicion arose.6 Here, in contrast, Pinner had reasonable suspicion, before the computer check ended, that Bams was trafficking drugs. When he approached the vehicle, Pinner observed that (1) Bams‘s hands were shaking and he appeared nervous; (2) there was a single key in the ignition; (3) there were energy drinks in the vehicle; and (4) the driver‘s-side rear quarter panel appeared to have been tampered with.
Based on those observations, Pinner had reasonable suspicion that Bams and Mitchell were engaged in drug trafficking. The most important fact is the apparently modified quarter panel. We have expressly distinguished Dortch and Santiago on the basis that “in those cases there were no physical facts suggesting the presence of a hidden compartment.” United States v. Estrada, 459 F.3d 627, 632 (5th Cir. 2006).7 In addition, a person‘s nervousness at a traffic stop may contribute to an officer‘s reasonable suspicion. See Brigham, 382 F.3d at 508; Jenson, 462 F.3d at 408. Pinner also explained how drug traffickers often drive third-party vehicles and thus have only a single key. Finally, he described how traffickers use energy drinks to help them drive to their destination without stopping. Considering all of those observations together, Pinner had reasonable suspicion, before he finished the computer checks, that Bams was engaged in drug trafficking. Thus, Pinner did not unreasonably extend the detention, and Bams‘s consent was not tainted.
III.
Bams asserts that there was insufficient evidence to convict him of the drug conspiracy. A jury verdict is entitled to “great deference.” United States v. Gray, 96 F.3d 769, 772 (5th Cir. 1996). “In a sufficiency of the evidence claim, ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.‘” United States v. Rojas Alvarez, 451 F.3d 320, 326 (5th Cir. 2006) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We thus assume that the evidence offered by the government is true and must draw inferences in its favor. Id.
“To prove a drug conspiracy, the government must prove that (1) two or
Based on the evidence, a rational jury could conclude that Bams reached an agreement to distribute drugs with Mitchell. They were stopped with over a quarter-million dollars in cash contained in sacks and wrapped in rubber bands. Special Agent Gorenc testified that those facts, along with the denominations of the cash and the size of the individual bundles, were consistent with drug trafficking. He also testified regarding travel patterns in the drug trade and how drugs generally flowed northward and proceeds traveled southbound, toward Mexico; Bams and Mitchell were driving south when they were stopped with the money. Also, Baggett found four cell phones in the car, and the jury heard testimony about how drug traffickers use multiple cell phones.
Finally, the government presented evidence of the following text-message exchange that occurred between Mitchell and an unknown person:
Unknown person: “38.5”
Mitchell: “Need 2 ok 38.5”
Mitchell: “Bring paper work in mor to you.”
Gorenc testified that $38,500 is a common price for a kilogram of cocaine and that “bring paper work” is lingo for bringing money. He interpreted the exchange to mean that the unknown person was quoting a price and that Mitchell was responding that he wanted two kilograms and would bring money in the morning (Gorenc understood “mor” to mean morning). Given the evidence, a rational jury could conclude that the quarter-million dollars was related to drug trafficking.
Bams disputes the origin of the seized money. He claims that it was Mitchell‘s and came from a settlement after Mitchell was in a motorcycle accident. But the jury was presented with numerous reasons to doubt that story. First, Mitchell told Baggett that one of the bags with money in it belonged to Bams, and Mitchell was unable to say how much money there was in total. Second, the money returned by the county was ultimately deposited into Bams‘s bank account. Third, Mitchell‘s settlement occurred in the “mid-2000‘s.” A jury could reasonably doubt that Mitchell would still be carrying that much cash
The jury also heard testimony regarding the Arkansas stop, where Bams and Mitchell were found in a vehicle containing ten kilograms of cocaine. The jury could reasonably infer, based on the quantity, that multiple people were involved in its transportation. United States v. Vasquez, 677 F.3d 685, 694 & n.3 (5th Cir. 2012) (per curiam). Pinner also found nine cell phones in the vehicle, and, as noted above, the jury heard testimony that drug traffickers often use multiple cell phones. Finally, Gorenc testified, as described above, that drugs typically travel north from Mexico, and Bams and Mitchell were stopped in Arkansas heading north.
Considering the evidence together, a rational jury could conclude that Bams and Mitchell had agreed to distribute cocaine. They were stopped with a large sum of cash that reasonably could relate to drug trafficking. The returned portion ended up in Bams‘s account. And then, several weeks later, the same two people were stopped again, this time with ten kilograms of cocaine. That evidence is sufficient.
IV.
Bams challenges the sufficiency of the evidence with regard to his conviction under
Bams attacks sufficiency with respect to only the second and third elements. The analysis of those issues essentially merges with our discussion of sufficiency for the conspiracy charge. The indictment alleged that the “unlawful activity” that Bams was intending was the drug conspiracy. As explained above, there was sufficient evidence of the conspiracy, and a rational jury could infer intent based on the presence of the quarter-million dollars. With respect to the third element, the indictment alleged that the “act in furtherance” was the transportation of the money. Bams maintains that the money was from a licit source and so was not in furtherance of any conspiracy. But, as discussed above, a rational jury could infer that the money was related to the drug-trafficking conspiracy. Thus, it could convict Bams of the Section 1952 count.
V.
Bams challenges his classification as a career offender. Under
A.
For two convictions to serve as predicates for the career-offender enhancement, they must be “counted separately” under
[p]rior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense). If there is no intervening arrest, prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day. Treat any prior sentence covered by (A) or (B) as a single sentence.
Bams concedes that his offenses were not charged in the same instrument and that he was not sentenced on the same day. Thus, his convictions are counted separately under the plain terms of Section 4A1.2.13 Bams protests that “it was surely not the intent of [the Guidelines]” to permit a career-offender enhancement based on federal and state charges over the same underlying conduct. Even assuming that he is right, we are not at liberty to ignore the clear text of the guidelines.14 Nor is the district court. Thus, it did not err in classifying Bams‘s convictions as “separate” for the purpose of the career-offender enhancement.
B.
To serve as a predicate for the career-offender enhancement, a conviction must be an adult conviction.
But “absent an allegation that the defendant was denied counsel in the prior proceeding, a district court sentencing a defendant may not entertain a collateral attack on a prior conviction used to enhance the sentence unless such an attack is otherwise recognized by law.”15 Bams is not raising a claim that he was denied counsel, and he does not explain how his attack is “otherwise recognized by law.” The guidelines do not confer any right to attack a conviction collaterally,16 and Bams does not point to any statute authorizing such an assault. (
Even assuming Bams could pursue this line of attack, he is wrong on the merits. “[A]fter he turns 18, a defendant may be tried for a conspiracy which temporally overlaps his eighteenth birthday—if the government can show that the defendant ratified his involvement in the conspiracy after reaching majority.”17 “Ratification in this context simply means that a defendant ‘continues to participate in an ongoing conspiracy after his 18th birthday.‘”18 When he ratifies his involvement, Section 5032 is inapplicable.19
The district court concluded that Bams‘s 1993 federal conviction included criminal conduct that occurred after his eighteenth birthday, and the record documents support that conclusion. Bams turned eighteen in December 1991, yet the federal indictment alleged that Bams engaged in the conspiracy “from on or about January 1, 1989 through on or about October 1, 1992.” In accord with that timeline, the federal judgment states that the offense concluded on October 1, 1992. Thus, even if Bams could attack his prior conviction, the district court did not err in finding that it was an adult conviction.
VI.
Bams raises several other challenges to his sentence. Specifically, he contends that the district court erred (1) by finding that Bams intended to purchase cocaine with the money discovered in the Nacogdoches County stop, thus leading to a base offense level that was two points higher; (2) by applying a two-point enhancement based on its finding that Bams was an “organizer, leader, manager, or supervisor“; and (3) by adding two criminal-history points because Bams committed the instant offense while on supervised release.
But even if Bams were correct on all of those points, his guidelines range would not have changed. Because he is a career offender, the guidelines mandated a total offense level of 37 and a criminal-history category of VI. See
The judgment of conviction and sentence is AFFIRMED.
E. GRADY JOLLY, specially concurring:
I concur. Although the Guidelines approve designating an individual a career offender based on a singular criminal act, as occurred here, it stretches credulity, at least for me, to use such a basis for the appellation “career offender.”