United States Court of Appeals Fifth Circuit F I L E D REVISED JULY 15, 2005 IN THE UNITED STATES COURT OF APPEALS March 31, 2005
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk ____________________
No. 04-30089 ____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
LAWRENCE CLYDE BRINGIER, JR, also known as Junior, also known as Bread
Defendant - Appellant _________________________________________________________________
Appeal from the United States District Court for the Middle District of Louisiana, Baton Rouge No. 01-172-D _________________________________________________________________
Before KING, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:
On August 26, 2003, a jury convicted Lawrence Clyde
Bringier, Jr. of one count of conspiracy to distribute more than
five kilograms of cocaine under 21 U.S.C. § 846, two counts of
money laundering under 18 U.S.C. § 1956(a)(1)(B)(i) and 18 U.S.C.
§ 2, and one count of structuring transactions to evade reporting
requirements under 31 U.S.C. § 5324(a)(3) and 18 U.S.C. § 2. At
sentencing, the district court set Bringier’s base offense level
on the narcotics count at thirty-eight, calculating the amount of
drugs at 120 kilograms of cocaine and two kilograms of cocaine base (crack). Pursuant to the Presentence Report (PSR),
Bringier’s base offense level for each count included two levels
for obstruction of justice. In addition, the court enhanced
Bringier’s base offense level by two levels on the narcotics and
money laundering counts because of his role as a leader or
organizer. The district court then sentenced Bringier to 360
months imprisonment on the conspiracy count, 240 months
imprisonment on each of the money-laundering counts, and sixty
months imprisonment on the structuring-transactions-to-evade-
reporting-requirements count, to run concurrently. Bringier now
appeals his conviction and sentence, alleging various errors by
the district court. Addressing each of these alleged errors in
turn, we AFFIRM. We address Bringier’s challenges to his
conviction in summary fashion. We give more fulsome treatment to
his Booker-based challenge to his sentence. United States v.
Booker, 125 S. Ct. 738 (2005).
First, the district court did not err by deciding not to
quash the indictment for violation of the Kastigar principle
because Bringier waived his right to a Kastigar hearing. See
Kastigar v. United States, 406 U.S. 441 (1972). In May 2000,
Bringier’s wife and stepdaughter were kidnapped and murdered. In
connection with an ensuing investigation, the government granted
Bringier testimonial immunity in return for information he might
have regarding his family’s death. In a letter to Bringier’s
attorney, Thomas D’Amico, the government confirmed the oral
2 immunity agreement and noted two conditions to the agreement: (1)
that Bringier must tell the complete truth; and (2) that Bringier
agreed to relieve the government of the derivative evidence
burden of proof arising from Kastigar. See id.
On October 31, 2001, Bringier was charged in a superceding
indictment with, inter alia, conspiracy to distribute more than
five kilograms of cocaine, money laundering, and structuring
transactions to evade reporting requirements. On July 3, 2003,
Bringier filed a motion for a Kastigar hearing, requesting that
the government show that it did not use his immunized statements
or the fruits of those statements to develop either the
indictment or the evidence sought to be introduced at trial.
Bringier asked the district court to suppress the immunized
testimony and any evidence derived therefrom and to dismiss the
indictment in the event the government was unable to meet its
burden. The government opposed the defendant’s motion, arguing,
inter alia, that Bringier had waived his right to a
Kastigar hearing in the immunity agreement.
On August 12, 2003, the district court held a hearing on
Bringier’s motion. At the hearing, the government presented two
witnesses: Federal Bureau of Investigation Special Agent Roger
White and Bringier’s former attorney, Thomas D’Amico.1 Both
1 D’Amico withdrew from representing Bringier approximately two months after Bringier’s arraignment on the narcotics and money laundering charges when he learned that his former client, Ken Barrow, was identified by the government as a prosecution witness.
3 witnesses testified that Bringier entered into the immunity
agreement described in the government’s letter which specifically
stated that Bringier waived his right to a Kastigar hearing. At
the conclusion of the hearing, the district court denied
Bringier’s Kastigar motion, reasoning that Bringier had waived
his right to such a hearing.
On appeal, Bringier argues that his Sixth Amendment right to
conflict-free representation was violated because D’Amico had a
conflict of interest, and thus that D’Amico’s testimony should be
struck and the case should be remanded to the district court for
another hearing on his Kastigar motion. Specifically, Bringier
argues that the district court erred in failing to take into
account D’Amico’s conflict of interest. Bringier claims that
after D’Amico withdrew from representing him in the present case,
D’Amico began representing James Eugene Warner, III, one of
Bringier’s co-defendants. Bringier also claims that D’Amico had
previously represented Ken Barrow,2 a cooperating informant who
ultimately testified against Bringier at trial. D’Amico
represented Barrow in 1998 and in 2000 during the time D’Amico
was representing Bringier.
We disagree with Bringier’s contention that D’Amico
2 Bringier appears to confuse Ken Barrow with Lawrence Harvey, and thus incorrectly states in his brief that D’Amico represented Lawrence Harvey.
4 testified at the hearing while laboring under a conflict of
interest. The timeline of this case is indicative: When
Bringier entered into the immunity agreement, D’Amico (who was
then representing him) no longer represented Barrow and did not
yet represent Warner. D’Amico could not have known at that time
that Barrow, his former client, would become a prosecution
witness in the case against Bringier, nor could he have known
that at some point in the future he would represent Warner in a
case where Bringier would be his co-defendant. Similarly, at the
time of the hearing on the Kastigar motion, D’Amico no longer
represented Bringier and did not attend the hearing in a
representative capacity. D’Amico’s role in the hearing was to
provide factual, non-privileged testimony regarding the waiver of
the Kastigar hearing. In addition, the only case Bringier cites
in support of his claim that D’Amico had a conflict of interest,
United States v. Newell, 315 F.3d 510 (5th Cir. 2002), is clearly
distinguishable from the present case. In Newell, a lawyer
simultaneously represented two defendants at trial and chose to
sacrifice one of his clients to save the other. Id. at 518-19.
Conversely, in the present case, D’Amico never represented two
clients with conflicting interests at the same time. In
addition, it is worth noting that the district court specifically
found D’Amico’s testimony credible. The district court stated:
Let me say at the outset, I have known Mr. D’Amico for many years. I not only know of him by reputation, but I have had him appear in this court on a number of
5 occasions. He has a representation [sic], not only with me, but I think among the criminal law community and the legal community in this area and in this state of being a premier criminal law attorney.
Thus, Bringier’s claim that D’Amico labored under a conflict of
interest has no merit.
Moreover, even assuming arguendo that D’Amico did have a
conflict and that his testimony should have been stricken, the
district court still had ample evidence to find that Bringier had
waived his right to a Kastigar hearing. First, Special Agent
Roger White also testified to the terms of the immunity
agreement. Second, the letter memorializing the immunity
agreement was also introduced as evidence. Accordingly, the
district court did not err in finding that Bringier waived his
right to a Kastigar hearing and thus did not err by refusing to
quash the indictment.
Second, the district court did not err by denying Bringier’s
motion for acquittal based on insufficiency of the evidence.
With regard to the conspiracy to distribute narcotics conviction,
the government introduced sufficient evidence demonstrating
Bringier’s role in the conspiracy: various witnesses testified
and the government presented additional evidence corroborating
the testimony (e.g., phone records and drugs that were seized).
There was also ample evidence that Bringier engaged in money
laundering. Specifically, there was evidence that Bringier used
a nominee to purchase a car and a house with the proceeds of an
6 unlawful activity and that he made an effort to conceal that he
was the real purchaser. Finally, the evidence showed that
Bringier was indeed structuring transactions to evade reporting
requirements. There was evidence of Bringier’s pattern of bank
deposits, his wife’s knowledge of the reporting requirements, and
his knowledge that depositing over $10,000 would require
additional paperwork. There is no doubt that a rational trier of
fact could have found that this evidence established Bringier’s
guilt beyond a reasonable doubt on all counts on which he was
convicted. We therefore hold that the evidence was sufficient to
support Bringier’s conviction and that the district court did not
err by denying Bringier’s motion for acquittal.
Third, the district court did not err by denying Bringier’s
motion for a mistrial on the basis that several witnesses made
references to the deaths of his wife and stepdaughter while
testifying. There is no significant possibility that the
references to his family’s death (i.e., the statements that “an
accident happened in [Bringier’s] life,” “the funeral services of
[Bringier’s] wife,” and “right before [Bringier’s] family got
killed”) substantially impacted the jury’s verdict in light of
the entire record. The evidence of Bringier’s guilt--as stated
above--was overwhelming, making the references Bringier complains
of harmless. Thus, the district court did not abuse its
discretion by denying Bringier’s motion.
Fourth, the district court did not err by denying Bringier’s
7 motion for a mistrial on the basis that evidence related to a
shipment of over 200 kilograms of cocaine was introduced at
trial. First, the government never promised Bringier that it
would not introduce this evidence against him. Second, Bringier
failed to object timely to the introduction of the evidence.
Finally, as the district court noted, this evidence was not
prejudicial to Bringier since other witnesses testified that
“many, many kilos of cocaine . . . were directly distributed to
this defendant.” Hence, the district court did not abuse its
Fifth, we reject Bringier’s argument that the district court
erred by allowing the verdict to stand in light of the cumulative
errors that occurred during trial. Having concluded that the
district court did not commit the errors alleged by Bringier, we
find that the cumulative error doctrine is simply inapplicable.
United States v. Villarreal, 324 F.3d 319, 328 (5th Cir. 2003).
Thus, the district court did not err by allowing the verdict to
stand.
Finally, Bringier makes two arguments with regard to his
sentence. First, Bringier argues that the district court erred
by imposing a two-level enhancement to his base offense level in
the narcotics and money-laundering convictions under the UNITED
STATES SENTENCING GUIDELINES §3B1.1 [hereinafter U.S.S.G. or the
Guidelines]. Specifically, Bringier argues that the evidence at
trial did not support a finding by the district court that he was
8 a leader or organizer in the drug or money laundering schemes.
The evidence presented at trial shows that Bringier was a leading
player in a major drug conspiracy. There was evidence at trial
that: (1) Bringier alone bought and sold approximately
$12,200,000 worth of cocaine; (2) Bringier used Jamar Rucker as a
courier to transport hundreds of thousands of dollars and
approximately 100 kilograms of cocaine; (3) Bringier hired cooks
to convert the cocaine he purchased into crack; and (4) Bringier
paid Ken Barrow to use his house to cook cocaine. Based on this
evidence, the district court’s determination that Bringier was a
leader or a organizer of the drug conspiracy was not clearly
erroneous.3 The evidence presented at trial also shows that
Bringier was a leader or organizer in the money-laundering
schemes. There was evidence that Bringier recruited Leonard
Foreman, paid him $5,000 to purchase the Worthey Road property,
and continued to exercise control over him by using him as an
intermediary with respect to the property. The evidence also
showed that Bringier recruited Lawrence Jackson to buy a Corvette
in Jackson’s name for Bringier’s use and that Bringier directed
Jackson’s actions with regard to the purchase, a process that
took considerable effort because of Jackson’s poor credit rating.
Bringier not only used Foreman and Jackson, but he recruited
3 Both parties agree that we review the judge’s factual findings for clear error. Accordingly, we assume without deciding that clear error is the proper standard post-Booker.
9 them, got them to participate in his money laundering schemes,
exercised control over them, and then continued to direct their
activities in connection with these schemes. Therefore, we hold
that the district court’s determination that Bringier was a
leader or organizer in the money-laundering schemes was not
clearly erroneous. Accordingly, the district court did not err
by imposing a two-level enhancement to Bringier’s base offense
level in the narcotics and money laundering convictions.
Bringier next argues, for the first time on appeal, that his
sentence is illegal under Blakely v. Washington, 125 S. Ct. 21
(2004). While Bringier’s case was pending before this court, the
Supreme Court decided Booker, 125 S. Ct. at 738. In Booker, the
Supreme Court held that when a sentencing judge bound by
mandatory guidelines increased the sentencing range under the
Guidelines based on facts (other than the fact of a prior
conviction) not found by the jury or admitted by the defendant,
the sentence violated the defendant’s Sixth Amendment right to a
jury trial. 125 S. Ct. at 756. In light of the Supreme Court’s
decision in Booker, we requested supplemental briefing from the
parties. In his supplemental brief, Bringier concedes that his
objections to the PSR and his sentence were not expressed in
terms of Blakely or the Sixth Amendment. Nevertheless, Bringier
argues that his objections below capture the essence of Blakely
and the Sixth Amendment, and thus that this court should consider
the issue preserved for review. However, Bringier did not make a
10 Blakely or a Sixth Amendment argument below, and we decline
Bringier’s suggestion that we consider his arguments below in the
“essence” of Blakely and the Sixth Amendment. Accordingly, we
review Bringier’s sentence for plain error. See Booker, 125 S.
Ct. at 767; United States v. Mares, No. 03-21035, 2005 WL 503715
(5th Cir. March 4, 2005).
Under the plain error review standard we have “a limited
power to correct errors that were forfeited because [they were]
not timely raised in the district court.” United States v. Olano,
507 U.S. 725, 731 (1993). “An appellate court may not correct an
error the defendant failed to raise in the district court unless
there is (1) error, (2) that is plain, and (3) that affects
substantial rights.” Mares, 2005 WL 503715, at *8 (citing United
States v. Cotton, 535 U.S. 625, 631). “If all three conditions
are met an appellate court may then exercise its discretion to
notice a forfeited error but only if (4) the error seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.” Id.
With regard to plain-error review, Bringier argues that it
was plain error for the district court to enhance his sentence
using facts not found by a jury in violation of his Sixth
Amendment right. The district court enhanced Bringier’s sentence
pursuant to its findings that Bringier was a leader or organizer
in the narcotics and money-laundering schemes, that Bringier had
distributed 120 kilograms of cocaine and two kilograms of crack
11 cocaine (rather than five to fifteen kilograms of cocaine) in the
narcotics scheme, and that he had obstructed justice on all
counts. Bringier contends that these errors affected his
substantial rights because the sentencing range for each count of
which he was convicted was higher than it otherwise would have
been absent those findings.
The first prong of the plain error test is satisfied in this
case. Under the mandatory guideline system in place at the time
of sentencing, Bringier’s sentence was enhanced based on findings
made by the judge that went beyond the facts admitted by the
defendant or found by the jury. Bringier has therefore
established Booker error. Because of Booker, the error is also
plain. Mares, 2005 WL 503715, at *11 (citing Olano, 507 U.S. at
734 and Johnson v. United States, 520 U.S. 461, 468 (1997)). The
third prong, however, is not satisfied in this case. Bringier
has failed to show that the error affected his substantial
rights. The standard for determining whether an error affects
substantial rights requires that the error affected the outcome
of the district court’s proceedings. Mares, 2005 WL 503715, at
*8 (citing Olano, 507 U.S. at 734). To meet this standard,
Bringier bears the burden of demonstrating a probability
sufficient to undermine confidence in the outcome. Id. (citing
United States v. Dominguez Benitez, 124 S. Ct. 2333, 2340
(2004)). Since the error here was the district court’s use of
extra verdict enhancements to reach a sentence under Guidelines
12 that the judge believed to be mandatory, the question is whether
Bringier has demonstrated that the sentencing judge would have
reached a different result had it sentenced Bringier under an
advisory scheme rather than a mandatory one. Mares, 2005 WL
503715, at *9. Based on the record before us, we do not know
what the trial judge would have done had the Guidelines been
advisory. Bringier has pointed to nothing in the record
indicating that the sentencing judge would have reached a
different conclusion under an advisory scheme.4 Bringier’s mere
4 Out of an excess of caution, but not out of any obligation to do so, we have reviewed the sentencing hearing transcript and found that the judge made some remarks regarding the sentence he imposed. The sentencing judge specifically stated:
I do not know that the testimony at the trial ever made it, nailed it down, but I suspect--and I think you probably suspect as well--that your activities led to the death of your wife and child. I just think it is, you know, a tragedy, you know, a waste of a young man that could have been many things. I do not know what to tell you other than this is the-- even though it is a harsh sentence of 30 years, that is the lowest sentence that I could give you. Your convictions on these counts could have carried a life sentence, but I do not see any reason to sentence you beyond the minimum.
The Eleventh Circuit has recently decided a case in which it found that the defendant met his burden under the third prong of plain-error review. United States v. Shelton, No. 04-12602, 2005 WL 435120 (11th Cir. Feb. 25, 2005). In Shelton, the court considered the statements made by the sentencing judge, writing:
The district court during sentencing expressed several times its view that the sentence required by the Guidelines was too severe, and noted that “unfortunately” Shelton’s criminal history category under the Guidelines was based on his past charges rather than on the actual nature of the crimes as reflected in the sentences
13 assertion that his sentence would have been lower absent the
extra verdict enhancements fails to suffice. Under these
circumstances, Bringier has failed to carry his burden of
demonstrating that the result would likely have been different
had the judge been sentencing under the post-Booker advisory
regime rather than the pre-Booker mandatory regime. Accordingly,
we find no plain error and affirm Bringier’s sentence.
For the foregoing reasons, we AFFIRM Bringier’s conviction
and sentence.
imposed in those cases. The district court not only sentenced Shelton to the lowest possible sentence it could under the Guidelines, 130 months, but also stated that sentence was “more than appropriate” in this case. All of these comments taken together convince us that there is a reasonable probability the district court would have imposed a lesser sentence in Shelton’s case if it had not felt bound by the Guidelines.
Shelton, 2005 WL 435120, at *6 (emphasis added).
Unlike Shelton, the sentencing judge here did not lament over the sentence he imposed, nor did he state that the sentence is “more than appropriate” or “too severe.” Instead, he merely acknowledged the sentence was harsh. In addition, the fact that the sentencing judge imposed the minimum sentence under the Guideline range (360 months) alone is no indication that the judge would have reached a different conclusion under an advisory scheme. Mares, 2005 WL 503715, at *9. Accordingly, the sentencing judge’s statements in this case are not sufficient to raise a reasonable probability that he would have reached a different conclusion under an advisory scheme. Therefore, Bringier would not have met his burden under the third prong of plain-error review even had he pointed to the sentencing judge’s remarks.