United States v. Travis Bowdery

545 F. App'x 329
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 27, 2013
Docket11-5787, 12-5099
StatusUnpublished
Cited by2 cases

This text of 545 F. App'x 329 (United States v. Travis Bowdery) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Travis Bowdery, 545 F. App'x 329 (6th Cir. 2013).

Opinions

KETHLEDGE, Circuit Judge.

On September 15, 2007, Charlie Ealy was leaving the Silver Spoon nightclub parking lot in his 2006 Cadillac DTS when he saw a woman he knew leaving the club. He stopped and talked to her for a few minutes. A man approached them, armed with a handgun. At the same time, a car pulled up and blocked in Ealy’s car. Eventually, the gunman and driver— armed with a tire iron — forced Ealy out of the Cadillac and onto the ground. The two men stole Ealy’s car, watch, necklace, bracelet, and two rings. A jury later determined that the gunman was Lawrence Harper and found him guilty of carjacking, see 18 U.S.C. § 2119, felon in possession of a firearm, see 18 U.S.C. § 922, and use of a firearm during the commission of a crime of violence, see 18 U.S.C. § 924(c). The jury also determined that the driver was Travis Bowdery and found him guilty of carjacking, see 18 U.S.C. § 2119, felon in possession of a firearm, see 18 U.S.C. § 922, use of a firearm during the commission of a crime of violence, see 18 U.S.C. § 924(c), obstruction of a criminal investigation, see 18 U.S.C. § 1510(a), and tampering with witness testimony, see 18 U.S.C. § 1512(b). The district court sentenced Harper to 204 months’ imprisonment and Bowdery to 320 months’ imprisonment. Harper challenges his conviction and sentence, and Bowdery challenges his conviction.

A.

Harper and Bowdery challenge the sufficiency of the evidence supporting their convictions. “We review de novo a challenge to the sufficiency of the evidence supporting a criminal conviction.” United States v. Howard, 621 F.3d 433, 459 (6th Cir.2010) (internal quotation marks omitted). Our review of a guilty verdict “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.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original).

Harper and Bowdery first challenge the sufficiency of the evidence supporting their convictions for being felons in possession of a firearm, in -violation of 18 U.S.C. § 922(g). The statute requires proof of three elements: first, “that the defendant had a previous felony conviction,” second, “that the defendant knowingly possessed the firearm specified in the indictment,” and third, “that the firearm traveled in or affected interstate commerce.” United States v. Morrison, 594 F.3d 543, 544 (6th Cir.2010) (internal quotation marks and citation omitted). Harper and Bowdery do not contend the first and third elements. The issue, then, is whether the government proved that Harper and Bowdery each possessed the firearm.

[332]*332The jury had sufficient basis to conclude that each of them did. As to Harper, Ealy positively identified Harper as the person who pointed the gun at him during the robbery. Ealy also testified that Harper was within a few feet of him at the time and did nothing to conceal his face. In addition, Ealy identified Harper in a photo lineup as the gunman immediately following the robbery. From this evidence, a rational jury could conclude that Harper possessed the gun.

There was likewise evidence that Bowdery possessed the firearm. A Memphis Police officer, Detective Cezar Polk, discovered the firearm in the bedroom of Bowdery’s girlfriend, Daschia Lathan. Lathan’s mother and two sisters also testified that Lathan did not own any guns and that Bowdery often spent the night in Lathan’s bedroom. Moreover, multiple witnesses testified that Bowdery urged Lathan to confess to the possession charge so that he could avoid conviction. And none of those witnesses had ever seen Lathan with a gun or knew of her owning one. Victoria Wilson — Bowdery’s former girlfriend — testified that Bowdery told her that the gun found in Lathan’s bedroom was his. Ealy and Erika Taylor also testified that the gun found in Lathan’s bedroom matched the gun used during the robbery. This evidence supports the jury’s finding that Bowdery at some point possessed the gun.

Harper and Bowdery next argue that there was insufficient evidence to support their carjacking convictions. To obtain a carjacking conviction, the government must “prove that the defendant, (1) with intent to cause death or serious bodily harm, (2) took a motor vehicle, (8) that had been transported, shipped, or received in interstate or foreign commerce, (4) from the person or presence of another (5) by force and violence or intimidation.” United States v. Fekete, 535 F.3d 471, 476 (6th Cir.2008).

The intent element is the one the defendants challenge here. “Congress’ inclusion of the intent element requires the Government to prove beyond a reasonable doubt that the defendant would have at least attempted to seriously harm or kill the driver if that action had been necessary to complete the taking of the car.” Holloway v. United States, 526 U.S. 1, 11-12, 119 S.Ct. 966, 143 L.Ed.2d 1 (1999).

Here, Ealy testified that Harper pointed the gun at him at close range and told him to get out of the Cadillac. That action alone “is the equivalent of issuing a direct verbal threat to kill or harm” and supports the jury’s finding of specific intent. Fekete, 535 F.3d at 482. Ealy also testified that both Harper and Bowdery— armed with a tire iron — physically forced him to the ground. That too indicates an intent on the part of the defendants to act violently. See United States v. Adams, 265 F.3d 420, 425 (6th Cir.2001). Sufficient evidence supports each defendant’s conviction.

Harper also argues that there was insufficient evidence to support his conviction for being in possession of a firearm during a carjacking, in violation of 18 U.S.C. § 924(c). Harper advances nothing new here; he repeats his gun possession and carjacking arguments. Because we reject those arguments, we likewise reject this one.

Bowdery advances two sufficiency arguments independent of Harper. First, Bowdery argues that there was insufficient evidence to support his conviction for obstruction of a criminal investigation, in violation of 18 U.S.C. § 1510.

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Bluebook (online)
545 F. App'x 329, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-travis-bowdery-ca6-2013.