United States v. Buluc

• Decision Date: 09 July 2019
• Docket Number: No. 17-20694,17-20694
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Bekir BULUC, also known as Celebi Buluc, also known as Bekir Celibi, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

930 F.3d 383

UNITED STATES of America, Plaintiff - Appellee

v.Bekir BULUC, also known as Celebi Buluc, also known as Bekir Celibi, Defendant - Appellant

No. 17-20694

United States Court of Appeals, Fifth Circuit.

FILED July 9, 2019

John A. Reed, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, for Plaintiff - Appellee.

Marjorie A. Meyers, Federal Public Defender, Joshua Bradley Lake, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, for Defendant - Appellant.

Before CLEMENT, DUNCAN, and OLDHAM, Circuit Judges.

STUART KYLE DUNCAN, Circuit Judge:

A jury convicted Turkish national Bekir Buluc under 8 U.S.C. § 1253(a)(1)(C) for "tak[ing] ... action" that was "designed to prevent or hamper" his removal from the United States. While immigration officers were escorting Buluc onto a commercial flight to Turkey, Buluc announced he would not board the plane and vigorously resisted the officers’ attempts to carry him aboard. Airline personnel, witnessing the fracas, barred Buluc’s boarding. At trial, Buluc claimed that the subsection under which he was prosecuted requires "joint" action. Invoking the canons of construction ejusdem generis and noscitur a sociis , Buluc argued that the meaning of "takes action" in § 1253(a)(1)(C) is colored by the nearby verbs "connives" and "conspires," which connote joint action. Id. (penalizing an alien who "connives or conspires, or takes any other action, designed to prevent or hamper ... [his] departure pursuant to [a final order of removal]"). Buluc therefore moved for acquittal because there was no evidence that he acted with anyone else to prevent his removal. Buluc also objected on Confrontation Clause grounds to the officers’ testimony that airline personnel denied him boarding after witnessing his tantrum. The district court disagreed with Buluc on both points.

On appeal, Buluc again wheels out the statutory canons to cabin the phrase "takes any other action" to joint action. We are unpersuaded. The relevant phrase—"connives or conspires, or takes any other action"—contains none of the contextual fuses that trigger those canons. Instead, the phrase’s structure conveys that "takes any other action" has independent meaning, which easily encompasses Buluc’s solo efforts to thwart his removal. We also disagree with Buluc’s Confrontation Clause arguments. The officers’ testimony that airline personnel denied Buluc boarding did not implicate the Confrontation Clause. Even if it did, any error was harmless. We affirm.

I.

Pursuant to a final order of removal, the United States attempted to deport Buluc via a commercial flight to Turkey on October 4, 2016. Since Buluc had "caused problems" during his four previous removals, Immigration and Customs Enforcement ("ICE") arranged for extra help. Several ICE officers, including Richard Rawls ("Officer Rawls") and Michael Nugent ("Officer Nugent"), escorted Buluc to the Bush Intercontinental Airport in Houston, Texas. En route, Buluc warned officers that he intended to resist. He told them: "I am not going to get on that flight." He also stated: "You can’t use force putting me on a commercial flight. You are going to have to put me on a charter flight because there you can use force."

To avoid a scene in the airport, ICE arranged for a Houston police officer to meet them on the tarmac and board Buluc plane-side. But once they arrived, Buluc refused to exit the vehicle, again stating that he did not want to go. Officers then pulled Buluc from the vehicle, put him on the ground, and searched him. Then they tried to carry a still-intransigent Buluc to the plane. Buluc "remained rigid" until the officers approached the plane’s stairs. He then "started kicking and physically resisting" and "violently pik[ing] and mov[ing] about to where it was difficult to continue to carry him," and so the officers put him down.

In light of this commotion, Turkish Airlines refused to board Buluc. An airline representative, Mr. Ozel, observed the "ruckus" and denied Buluc boarding. After Buluc realized the airline would not permit him to board, he stopped resisting and walked back to the vehicle. The officers then returned him to the detention center.

The government charged Buluc with preventing his departure under Subsection (C) of 8 U.S.C. § 1253(a)(1) ("Subsection (C)"), which penalizes "[a]ny alien" who "connives or conspires, or takes any other action, designed to prevent or hamper or with the purpose of preventing or hampering the alien’s departure pursuant to [a final order of removal]." Following the government’s case at trial, Buluc moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29. He argued that the trial evidence fatally varied the charges in the indictment, because Subsection (C) requires proof of a "joint act" to prevent an alien’s departure, and the government had not proved that. Buluc’s attorney argued, "You can’t conspire alone or with a government agent. The government must prove that he connived, conspired or took some other similar action. And I don’t think they have proven any of that." The district judge denied the motion, however, reasoning that the pertinent statutory terms—"connives or conspires, or takes any other action"—are phrased disjunctively, and that the government had presented sufficient evidence that Buluc "took action" to prevent his departure.

Buluc also challenged on Confrontation Clause grounds statements introduced by the prosecution that Buluc was denied boarding by the airline representative. Buluc objected to the prosecutor’s opening statement that the jury would hear about the airline’s refusal to let Buluc board because "[t]hat’s not what they want the customers to see." Buluc also objected to testimony from Officers Rawls and Nugent. Specifically, Rawls testified that the airline "denied his boarding," and Nugent similarly testified that "[w]e were denied boarding." Buluc timely objected on Confrontation Clause grounds, and the judge permitted Buluc to enter an ongoing objection. Ultimately, the court overruled Buluc’s objections, concluding the officers had testified about "whether or not they were allowed to put him on the airplane," and not "what was said" by the airline representative.

Buluc rested without presenting a case. The jury found him guilty, and the judge sentenced him to 46 months imprisonment and one year supervised release. Buluc now appeals the district court’s denial of his acquittal motion and its Confrontation Clause ruling.

II.

We review de novo a district court’s denial of a motion for judgment of acquittal under Rule 29. United States v. Campbell , 52 F.3d 521, 522 (5th Cir. 1995) (per curiam). In doing so, we ask "whether a reasonable jury could conclude that the evidence presented, viewed in the light most favorable to the government, established the defendant’s guilt beyond a reasonable doubt." United States v. Duncan , 164 F.3d 239, 242 (5th Cir. 1999). The district court’s decision on the motion is accorded no deference. Id . Additionally, whether introduction of testimony violated the Confrontation Clause is reviewed de novo , "subject to a harmless error analysis." United States v. Polidore , 690 F.3d 705, 710 (5th Cir. 2012). "Harmless error means that there is [no] reasonable possibility that the evidence complained of might have contributed to the conviction." United States v. Kizzee , 877 F.3d 650, 661 (5th Cir. 2017) (alteration in original) (internal quotation marks omitted).

III.

A.

Appealing the denial of his acquittal motion, Buluc argues the district court misconstrued 8 U.S.C. § 1253(a)(1)(C) by failing to recognize that it requires "joint action." In several unpublished opinions, we have affirmed the evidentiary sufficiency of convictions under Subsection (C) that do not involve joint action, albeit without addressing the interpretive arguments Buluc raises.¹ We now make explicit what was implicit in those non-precedential decisions: A defendant may be convicted of "taking ... action" to "prevent or hamper" his deportation under Subsection (C) without any proof that he acted in concert with someone else.

Subsection (C) appears within this broader context:

(a) Penalty for failure to depart

(1) In general

Any alien against whom a final order of removal is outstanding by reason of being a member of any of the classes described in section 1227(a) of this title, who—

(A) willfully fails or refuses to depart from the United States within a period of 90 days from the date of the final order of removal under administrative processes, or if judicial review is had, then from the date of the final order of the court,

(B) willfully fails or refuses to make timely application in good faith for travel or other documents necessary to the alien’s departure,

(C)connives or conspires, or takes any other action, designed to prevent or hamper or with the purpose of preventing or hampering the alien’s departure pursuant to such , or

(D) willfully fails or refuses to present himself or herself for removal at the time and place required by the Attorney General pursuant to such order,

shall be fined under Title 18, or imprisoned not more than four years (or 10 years if the alien is a member of any of the classes described in paragraph (1)(E), (2), (3), or (4) of section 1227(a) of this title), or both.

8 U.S.C. § 1253(a)(1) (emphasis added). On appeal, Buluc argues that the district court failed to apply two canons of construction—ejusdem generis and noscitur a sociis —to the Subsection (C) phrase "takes any other action." Buluc maintains the phrase must be limited by the nearby verbs "connives or conspires" to require joint or concerted action with another. Because there was no such evidence—the evidence shows Buluc acted alone—Buluc asserts the district court erred by denying his acquittal motion. For its part, the district court disagreed that Subsection (C) requires a joint act. "It...