United States v. Bekir Buluc , 930 F.3d 383 ( 2019 )

Case: 17-20694 Document: 00515026218 Page: 1 Date Filed: 07/09/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-20694 July 9, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
BEKIR BULUC, also known as Celebi Buluc, also known as Bekir Celibi,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
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
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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.”
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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
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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
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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:
1 See United States v. Ngay, 708 F. App’x 192, 193 (5th Cir. 2018) (per curiam)
(affirming Subsection (C) conviction where alien being deported “unequivocally declared to
the deportation officer . . . that he would not go[,]” “physically resisted the deportation officers’
efforts” to take him through security “by stiffening his legs to avoid moving forward” and by
“jerking his arms and thrashing about to escape the officers’ hold”); United States v.
Nzamubereka, 666 F. App’x 327, 327–28 (5th Cir. 2016) (per curiam) (affirming where
defendant “refused to sign a transit visa application necessary to remove him to Rwanda”);
United States v. Sat, 572 F. App’x 278, 279 (5th Cir. 2014) (per curiam) (affirming where
defendant “refus[ed] . . . to board a flight to India” on designated departure date); United
States v. Diallo, 569 F. App’x 221, 222 (5th Cir. 2014) (per curiam) (finding defendant
“connived or took other actions designed to prevent or hamper . . . his removal” by “becoming
disruptive and physically resisting the immigration enforcement agents when they
attempted to escort him onto commercial flights bound for the Central African Republic”).
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(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 seems to me[,]” the
court stated, “the way I read the statute is that he either connived or conspired
or took any other action. Those are disjunctive, and so I think that [Buluc] took
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action to prevent his deportation.” The government relies on the district court’s
reasoning on appeal. We agree with the district court and the government that
the cited canons do not require Buluc’s “joint-action” interpretation of “takes
any other action.”
First, the contextual canon ejusdem generis does not help Buluc.
Ejusdem generis (“of the same kind”) describes the “principle that ‘when a
general term follows a specific one, the general term should be understood as
a reference to subjects akin to the one with specific enumeration.’” Ali v. Fed.
Bureau of Prisons, 552 U.S. 214, 223 (2008) (quoting Norfolk & W. R. Co. v.
Train Dispatchers, 499 U.S. 117, 129 (1991)) 2; see also generally ANTONIN
SCALIA & BRYAN GARNER, READING LAW: THE INTERPRETATION OF LEGAL
TEXTS (2012), 199 (“SCALIA & GARNER”) (ejusdem generis signifies “[w]here
general words follow an enumeration of two or more things, they apply only to
persons or things of the same general kind or class specifically mentioned”).
Buluc argues this canon limits the general phrase “takes any other action” to
jointly undertaken acts because it follows the specific terms “connives or
conspires,” both of which require joint actions. See BLACK’S LAW DICTIONARY
at 375 (10th ed. 2014) (defining “conspiracy” as an “agreement by two or more
persons to commit an unlawful act”); id. at 366 (defining “connive” as
“knowingly overlook[ing] another’s wrongdoing”). We disagree.
2 See also, e.g., Reed v. Taylor, 923 F.3d 411, 416 (5th Cir. 2019) (quoting Circuit City
Stores, Inc. v. Adams, 532 U.S. 105, 114–15 (2001) & 2A N. SINGER, SUTHERLAND ON
STATUTES AND STATUTORY CONSTRUCTION § 47.17 (1991)) (“[T]he ejusdem generis canon”
means “‘[w]here general words follow specific words in a statutory enumeration, the general
words are construed to embrace only objects similar in nature to those objects enumerated
by the preceding specific words’”); United States v. Kaluza, 780 F.3d 647, 660–61 (5th Cir.
2015) (quoting Garcia v. United States, 469 U.S. 70, 74 (1984)) (explaining “[u]nder the
principle of ejusdem generis, ‘where general words follow an enumeration of specific terms,
the general words are read to apply only to other items like those specifically enumerated’”).
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Subsection (C) lacks the basic premise for applying ejusdem generis—a
list of specific terms followed by a catchall generic term or terms. See, e.g.,
Circuit City Stores, 532 U.S. at 114 (canon applies “[w]here general words
follow specific words in a statutory enumeration”) (alteration in original); see
also SCALIA & GARNER at 200 (charting canon’s application to “syntactic
constructions that have particularized lists followed by a broad, generic
phrase” and collecting decisions). For example, in one decision the Supreme
Court applied the canon to the list “execution, levy, attachment, garnishment,
or other legal process,” and concluded that the catchall “‘other legal process’
was limited to legal processes of the same nature as the specific items listed.”
Ali, 552 U.S. at 224 (discussing Wash. State Dep’t of Soc. and Health Servs. v.
Guardianship Estate of Keffeler, 537 U.S. 371, 375, 384–85 (2003)); see also
Reed, 923 F.3d at 416 (discussing Keffeler’s application of ejusdem generis).
Similarly, in another case the Supreme Court applied the canon to the
enumeration “contracts of employment of seamen, railroad employees, or any
other class of workers engaged in . . . commerce,” and concluded that the
residual clause (“any other class of workers”) was limited “by reference to the
enumerated categories of workers which are recited just before it.” Circuit City
Stores, 532 U.S. at 112, 114–15. Thus ejusdem generis relies on the “familiar
semantic structure” in which an enumeration of specific terms imparts a
restrictive meaning to a generic “follow-on phrase.” Reed, 923 F.3d at 416. That
signature structure justifies the “inference embodied in ejusdem generis that
Congress remained focused on the common attribute [of the specific terms]
when it used the catchall phrase.” Ali, 552 U.S. at 225.
Subsection (C) is not structured that way. To the contrary, it has a
distinct structure that repels application of ejusdem generis. As the Supreme
Court has explained, ejusdem generis does not apply when the relevant
“phrase is disjunctive, with one specific and one general category, not . . . a list
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of specific items separated by commas and followed by a general or collective
term.” Id. Thus, in Ali the Supreme Court declined to apply the canon to the
phrase “any officer of customs or excise or any other law enforcement officer.”
Id. The phrase did not present the ejusdem generis trademark of a list of
specifics followed by a “‘general or collective term.’” Id. (quoting United States
v. Aguilar, 515 U.S. 593, 615 (1995) (Scalia, J., concurring in part and
dissenting in part)). Instead, it featured the “disjunctive” pairing of “one
specific [category]” (“any officer of customs or excise”) and “one general
category” (“any other law enforcement officer”).
So too here. The verbs in Subsection (C)—“connives or conspires, or
takes any other action”—are not structured grammatically as a list of specifics
followed by a generic catchall. See, e.g., SCALIA & GARNER at 197 (explaining
that a list is “usually a parallel series of nouns and noun phrases, or verbs and
verb phrases”). Instead, the subsection disjunctively places one category of
verbs (“connives or conspires”) alongside a second category (“takes any other
action”). Like the three nouns in Ali, the verbs’ grouping as distinct categories
signals contextually that they have independent meaning. 3 The punctuation
of Subsection (C) underscores this point: “connives or conspires” is cordoned
off from “takes any other action” by a conspicuous set of commas. See 8 U.S.C.
§ 1253(a)(1)(C) (penalizing an alien who, inter alia, “connives or conspires, or
3 See, e.g., United States v. Turkette, 452 U.S. 576, 582 (1981) (determining ejusdem
generis inapplicable where a statute listed two categories, one of which was not “merely a
more general description of the first”); United States v. EME Homer City Generation, L.P.,
727 F.3d 274, 293 (3rd Cir. 2013) (citing Ali, 552 U.S. at 226; Watt v. W. Nuclear, Inc., 462
U.S. 36, 44 n.5 (1983) (explaining that “[s]ome statutes use a general phrase not as a residual
category intended to be a more general description of the preceding terms, but instead use
each of the terms, including the general phrase, as independent and unrelated statutory
categories”)); cf. United States v. Lauderdale Cty., 914 F.3d 960, 967 (5th Cir. 2019)
(concluding that the clause “‘conduct by law enforcement officers or by officials or employees
of any governmental agency’ does not contain a string of terms; rather, it contains two
independent clauses separated by a disjunctive ‘or’”).
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takes any other action, designed to prevent or hamper” his removal) (emphasis
added); see also, e.g., U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc.,
508 U.S. 439, 454 (1993) (observing that “the meaning of a statute will
typically heed the commands of its punctuation”); United States v. Ron Pair
Enters., Inc., 489 U.S. 235, 241 (1989) (relying on “grammatical structure” to
interpret a statute and reasoning that a phrase “set aside by commas . . .
stands independent of the language that follows”); SCALIA & GARNER at 161
(stating that “[n]o intelligent construction of a text can ignore its
punctuation”). Consequently, we conclude that the ejusdem generis canon fails
to support Buluc’s reading of Subsection (C).
Second, the related contextual canon noscitur a sociis also does not help
Buluc. Noscitur a sociis (“it is known by its associates”) applies “‘when a string
of statutory terms raises the implication that the words grouped in a list should
be given related meaning.’” Lauderdale Cty., 914 F.3d at 967 (quoting S.D.
Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370, 378 (2006)); see SCALIA &
GARNER at 195 (quoting Third Nat’l Bank in Nashville v. Impac Ltd., 432 U.S.
312, 322 (1977)) (explaining the canon “especially holds that ‘words grouped in
a list should be given related meanings’”). Here the operative phrase in
Subsection (C) lacks the “string of statutory terms” necessary to invoke the
canon. For instance, in Lauderdale County, we declined to apply noscitur a
sociis to the phrase “conduct by law enforcement officers or by officials or
employees of any governmental agency,” reasoning the phrase “does not
contain a string of terms” but “rather . . . contains two independent clauses
separated by a disjunctive ‘or.’” 914 F.3d at 967; see also, e.g., S.D. Warren Co.,
547 U.S. at 379–80 (explaining that “noscitur a sociis is no help absent some
sort of gathering with a common feature to extrapolate”); SCALIA & GARNER at
196 (explaining that “[f]or the associated-words canon to apply, the terms must
be conjoined in such a way as to indicate that they have some quality in
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common”). That principle defeats application of the canon here: As we have
explained, Subsection (C) features, not a list of verbs with common features,
but two grammatically distinct categories of verbs (“connives or conspires” and
“takes any other action”) separated by a disjunctive. We therefore decline to
apply noscitur a sociis to “takes any other action.” Doing so would unjustifiably
“rob” that broad phrase “of its independent and ordinary significance.” Graham
Cty. Soil & Water Conservation Dist. v. U.S. ex rel. Wilson, 559 U.S. 280, 288
(2010) (quoting Rieter v. Sonotone Corp., 442 U.S. 330, 338–39 (1979) (internal
marks omitted)).
In sum, we reject Buluc’s arguments that the cited canons limit the
Subsection (C) phrase “takes any other action” to “takes any other joint action.”
Leaving aside the fact that the contextual triggers for those canons are absent,
deploying the canons as Buluc suggests would “render [the] general words [of
Subsection (C)] meaningless.” Kaluza, 780 F.3d at 661 (quoting Christopher v.
SmithKline Beecham Corp., 567 U.S. 142, 163 (2012)). Nothing in the text or
surrounding context of Subsection (C) suggests that Congress meant to limit
the phrase “takes any other action” to actions taken in concert with others.
Congress could have easily enacted a different text conveying that meaning—
for instance, “connives or conspires, or takes any other joint action” or
“connives or conspires, or takes any other similar action.” Instead Congress
chose the broad, unqualified phrase—“takes any other action”—and fenced it
off from nearby verbs by commas. We must give effect to that choice. See, e.g.,
Ali, 552 U.S. at 227–28 (declining to deploy canons to limit “the unmodified,
all-encompassing phrase ‘any other law enforcement officer,’” where Congress
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“easily could have written” a narrower phrase); see also SCALIA & GARNER at
59 (“No canon of interpretation is absolute.”). 4
We therefore hold that the phrase “takes any other action” in 8 U.S.C.
§ 1253(a)(1)(C) is not limited to acts requiring joint or concerted action by the
defendant. Because a reasonable jury could conclude that the government’s
evidence established Buluc’s guilt under Subsection (C) beyond a reasonable
doubt, we affirm the denial of Buluc’s motion for judgment of acquittal.
B.
Buluc next argues certain evidentiary rulings of the district court
violated the Confrontation Clause. That clause bars “admission of testimonial
statements of a witness who did not appear at trial unless he was unavailable
to testify, and the defendant . . . had a prior opportunity for cross-
examination.” Crawford v. Washington, 541 U.S. 36, 53–54 (2004); U.S. CONST.
amend. VI. Specifically, Buluc challenges the prosecution’s opening statement
and two officers’ testimony about Turkish Airline representative Ozel’s refusal
to allow Buluc on the plane. During his opening statement, the prosecutor told
the jury it would hear officers’ testimony that Ozel refused to board Buluc.
Officers Rawls and Nugent subsequently testified that Ozel denied Buluc
permission to board. Rawls testified Ozel “denied his boarding.” Nugent
similarly testified, “We were denied boarding,” and observed he was “pretty
4 In his reply brief, Buluc also argues this reading of Subsection (C) renders
superfluous Subsection (A), which penalizes an alien who “willfully fails or refuses to depart
from the United States within a period of 90 days[.]” 8 U.S.C. § 1253(a)(1)(A); see, e.g.,
Howard Hughes Co., L.L.C. v. Comm’r, 805 F.3d 175, 183 (5th Cir. 2015) (discussing “the rule
against superfluities, [which] instructs courts to interpret a statute to effectuate all its
provisions, so that no part is rendered superfluous”) (alteration in original) (quoting Hibbs v.
Winn, 542 U.S. 88, 89 (2004)). “By failing to raise this argument until [his] reply brief, [Buluc]
ha[s] waived it.” Unida v. Levi Strauss & Co., 986 F.2d 970, 976, n.4 (5th Cir. 1993). In any
event, Buluc is wrong. Subsection (A) accounts for different conduct than Subsection (C): It
penalizes an alien for willfully failing to leave the United States within a specific time period
(90 days) after being ordered to do so.
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certain” Buluc heard Ozel’s denial. Buluc argues these were Confrontation
Clause violations because the officers referred to Ozel’s out-of-court statement
to prove that Buluc was denied boarding and because Buluc had no opportunity
to cross-examine Ozel. The district court overruled Buluc’s objections, finding
the officers’ testimony did not implicate the Confrontation Clause. We agree.
The admission of an out-of-court statement triggers the Confrontation
Clause only if the statement was “testimonial,” meaning its “‘primary purpose’
. . . was to ‘creat[e] an out-of-court substitute for trial testimony.’” Ohio v.
Clark, 135 S. Ct. 2173, 2180 (2015) (quoting Michigan v. Bryant, 562 U.S. 344,
358 (2011)) (alteration in original). Even assuming the officers’ testimony
referenced Ozel’s statement 5 denying Buluc boarding, that statement was not
“testimonial” for Confrontation Clause purposes. Ozel’s statement was made,
not in response to police questioning, but instead during the heated encounter
caused by Buluc’s violent resistance to being boarded. Under those
circumstances, we do not find the primary purpose of the statement was to
create evidence to incriminate Buluc at trial. See, e.g., id. (citing Bryant, 562
U.S. at 358) (statement was non-testimonial where “the circumstances
objectively indicated that the conversation was primarily aimed at quelling an
ongoing emergency, not establishing evidence for the prosecution”); United
States v. Barker, 820 F.3d 167, 170 (5th Cir. 2016) (quoting Clark, 135 U.S. at
2180) (in discerning whether statement was non-testimonial, court examines
“factors such as ‘whether an ongoing emergency exists’ and ‘the informality of
the situation and the interrogation’”). Ozel’s statement therefore fell outside
the purview of the Confrontation Clause.
5 That is a generous assumption. One may reasonably read the record, as the district
court did, to show that the officers testified only about “whether or not they were allowed to
put [Buluc] on the airplane,” and not about “what was said” by the airline representative.
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Alternatively, any error in admitting the officers’ testimony was
harmless beyond a reasonable doubt. United States v. Jimenez, 464 F.3d 555,
562 (5th Cir. 2006) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).
The government meets that standard by showing there was “‘no reasonable
possibility that the tainted evidence might have contributed to the jury’s
verdict of guilty.’” United States v. Jones, __ F.3d __, 2019 WL 2754760, at *8
(5th Cir. July 2, 2019) (quoting Lowery v. Collins, 988 F.2d 1364, 1373 (5th Cir.
1993)). We see no reasonable possibility here. The testimony about Ozel’s
refusal to board Buluc was unnecessary to prove Buluc acted to hamper his
departure under Subsection (C). See 8 U.S.C. § 1253(a)(1)(C) (requiring that
defendant only “take . . . action” to “prevent or hamper” his departure).
Moreover, that testimony was tangential to the evidence establishing Buluc’s
guilt. The record reflects that Buluc candidly told the officers on the way to the
airport that he did not intend to get on the flight. Buluc refused to get out of
the vehicle once they arrived at the airport. And Buluc vigorously resisted the
officers’ attempts to board him, to the extent that the officers had to carry him
to the plane. Even indulging the assumption that the district court erroneously
admitted testimony concerning the airline’s refusal to board Buluc, we discern
no reasonable possibility that it contributed to Buluc’s conviction.
AFFIRMED
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