           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                        September 10, 2009

                                       No. 08-30983                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

DONALD BATTISTE

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:07-CR-416-1


Before WIENER, GARZA, and ELROD, Circuit Judges.
PER CURIAM:*
       The original opinion in this matter was issued by the panel on August 13,
2009. A petition for rehearing is currently pending before this panel. The
petition for panel rehearing is granted in part. Accordingly, we WITHDRAW our
previous opinion and replace it with the following opinion.
       Donald Battiste (“Battiste”), a former police officer of the New Orleans
Police Department, challenges his conviction under 18 U.S.C. § 242. Battiste
pled guilty to two counts: (1) unreasonable seizure of property resulting in bodily

       *
         Pursuant to 5TH CIR . R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 08-30983

injury; and (2) use of excessive force during arrest, resulting in bodily injury.
For the following reasons, we affirm the conviction and sentence.
                                        I
      The convictions at issue arose from an investigation of Battiste conducted
by the Public Integrity Bureau (“PIB”) of the New Orleans Police Department
(“NOPD”). The NOPD was contacted by a source who informed them that
Battiste was stealing money from arrestees. Investigators from PIB conducted
an “integrity check” of Battiste, employing a decoy and a covert vehicle. The
decoy sat in the front passenger seat of the vehicle in an open-air public parking
lot in Battiste’s assigned district, with a surveillance van parked inside the lot
approximately 50 feet away from the decoy.
      The decoy was given $510 in cash by the NOPD. The money was divided
into three packets: one was placed in the decoy’s left front shirt pocket, one in
the right front pants pocket, and the other in the left rear pants pocket. The
decoy was told to act drunk. He was also instructed to, when confronted by the
police, put his hands in the air, not make any sudden moves, not to argue, and
not to do anything combative or aggressive.         The investigators set up a
surveillance camera to capture the encounter. Battiste and his partner were
dispatched to the surveilled location in order to respond to a drunk male
harassing women in the area.
      The facts of the interaction between Battiste and the decoy appear in the
videotape and were sworn to by Battiste in his guilty plea. Battiste and his
partner arrived at the scene. Battiste exited his vehicle and walked to the
driver’s side of the covert vehicle, which was empty, while his partner walked to
the passenger side where the decoy was seated. Battiste then walked around to
the passenger side and interposed himself in front of his partner. After the
decoy was ordered out of the vehicle, Battiste turned him around (so that his
back was to Battiste), and struck the decoy in the back with his elbow. The

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decoy cried out and dropped to his knees. Battiste then handcuffed him and
walked him to the police vehicle, telling his partner to search the covert vehicle.
Before placing the decoy in the police car, Battiste searched him and extracted
the money that was in the decoy’s pants pockets, placing all of it in his own
pocket. He then put the decoy in the back seat of the police car. After a short
conversation with a supervisor who appeared on the scene and then departed,
Battiste walked out of view of the surveillance camera. A PIB investigator on
the scene, who was able to observe Battiste’s actions, saw Battiste take the
money from his pocket and divide it into two packets, placing one in his front
pants pocket and the other in his rear pants pocket. He then returned to the
police vehicle, and he and his partner drove the decoy to the police station. At
the station, Battiste’s partner took the decoy inside for booking while Battiste
remained in the police car.
      PIB investigators later discovered the decoy to be missing 251 dollars of
the 510 dollars that had been planted. The decoy also reported that he had hurt
his knee when he was knocked to the ground by Battiste and that it was painful
for him to walk.
      Battiste was arrested after completing his shift. He waived his Miranda
rights and confessed to taking the money. After he pled guilty to both counts of
the indictment, the district judge sentenced him to 57 months in prison. This
appeal followed.
                                        II
      Battiste argues that there is not a sufficient factual basis to support his
guilty plea. Because this argument is raised for the first time on appeal, both
parties agree that this court reviews for plain error.      See United States v.
London, 568 F.3d 553, 558 (5th Cir. 2009). Under plain error review, Battiste
must show error that is clear or obvious and that affects his substantial rights.
United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008). To show that the error

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affected London's substantial rights, he “must show a reasonable probability
that, but for the error, he would not have entered the plea.” London, 568 F.3d
at 558. If such an error is shown, this court has discretion to correct it, but only
if the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id. at 559.
      Count 1 of Battiste’s indictment alleges that Battiste:
      while acting under color of law as a commissioned officer of the New
      Orleans Police Department during an investigative stop, stole United
      States currency from a person known to the Grand Jury, thereby willfully
      depriving that person of the right. . . not to be subjected to unreasonable
      seizure of property, with the offense resulting in bodily injury; all in
      violation of Title 18, United States Code, Section 242.

      Under 18 U.S.C. § 242, the government must prove that the defendant
acted willfully and under color of law to deprive a person of a federally protected
right.1 United States v. Lanier, 520 U.S. 259, 264 (1997). Thus, Battiste was
convicted under § 242 of an unlawful seizure under the Fourth Amendment,
committed under color of law. Battiste argues that the seizure of the decoy’s
money did not violate the Fourth Amendment for two reasons: the seizure of the
decoy’s money was reasonable as part of the lawful arrest; and the decoy did not


      1
       The statute states:
      Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully
      subjects any person in any State, Territory, Commonwealth, Possession, or District to
      the deprivation of any rights, privileges, or immunities secured or protected by the
      Constitution or laws of the United States, or to different punishments, pains, or
      penalties, on account of such person being an alien, or by reason of his color, or race,
      than are prescribed for the punishment of citizens, shall be fined under this title or
      imprisoned not more than one year, or both; and if bodily injury results from the acts
      committed in violation of this section or if such acts include the use, attempted use, or
      threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title
      or imprisoned not more than ten years, or both; and if death results from the acts
      committed in violation of this section or if such acts include kidnapping or an attempt
      to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse,
      or an attempt to kill, shall be fined under this title, or imprisoned for any term of years
      or for life, or both, or may be sentenced to death.
      18 U.S.C. §242.

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have a cognizable possessory interest in the money that was seized.
      The touchstone of the Fourth Amendment is, as always, reasonableness.
Reasonableness is an objective standard, and must be assessed from the
perspective of a reasonable officer on the scene. See Graham v. Connor, 490 U.S.
386, 396-97 (1989). To determine the reasonableness of a seizure under the
Fourth Amendment, we examine the “totality of the circumstances,” Ohio v.
Robinette, 519 U.S. 33, 39 (1996), and balance “the nature and quality of the
intrusion on the individual’s Fourth Amendment interests against the
importance of the governmental interests alleged to justify the intrusion. ” Gates
v. Texas Dep’t of Protective and Regulatory Servs., 537 F.3d 404, 427 (5th Cir.
2008) (internal quotations omitted).
      Battiste first argues that his seizure of the money from the decoy at the
time of the arrest was reasonable under Fourth Amendment law that permits
the arresting officer to take possession of “articles of value, found upon the
prisoner, by means of which, if left in his possession, he might procure his
escape, or obtain tools, or implements, or weapons with which to effect his
escape.” United States v. Robinson, 414 U.S. 218, 231-32 (1973)(quoting Closson
v. Morrison, 47 N.H. 482, 484-85 (1867)), Battiste contends that because money
may assist escape, a person has no right to maintain possession of money when
he is arrested, and thus seizure of the money in this case was lawful as incident
to the arrest.
      Undoubtedly, there is a strong governmental interest in preventing the
potential escape of an arrestee. However, under these facts, it is unclear how
Battiste’s seizure and subsequent appropriation of the money aided that goal.
Even a seizure that is “lawful at its inception” may ripen into a Fourth
Amendment violation where the “manner of execution unreasonably infringes
possessory interests by, for example, converting a temporary deprivation of
possessory interests into a permanent one.” Freeman v. City of Dallas, 186 F.3d

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601, 605 (5th Cir. 1999) (interpreting United States v. Jacobsen, 466 U.S. 109
(1984) and United States v. Place, 462 U.S. 696 (1983)). Battiste effected a
permanent and illegal deprivation of the money by taking the money from the
decoy at the scene, putting it into his own pockets, and subsequently failing to
turn it over at the police station. These actions were objectively unreasonable.
       Battiste’s argument that the decoy did not have a possessory interest in
the money because it belonged to the NOPD is unavailing.                         A Fourth
Amendment possessory interest is not limited to formal legal title; “a property
interest in the item searched is only one factor in the analysis, and lack thereof
is not dispositive.” U.S. v. Finley, 477 F.3d 250, 259 (5th Cir. 2007)(finding that
defendant had a possessory interest in a seized cell phone owned by his
employer). In this case, the decoy had clear possession of, and thus a possessory
interest in, the money in his pockets, notwithstanding the fact that it formally
belonged to the NOPD.          We agree with the Government that the decoy’s
possessory interest in the money in connection with the seizure is sufficient to
give rise to a Fourth Amendment violation.2
       We thus find that Battiste’s seizure was unreasonable under the Fourth
Amendment and sufficient for the purposes of his conviction under 18 U.S.C. §
242.
                                            III
       As to sentencing, Battiste contends that the district court erred in
sentencing him pursuant to the Guideline applicable to robbery, USSG § 2B3.1.
The district judge’s application of the Guidelines is reviewed de novo; because
Battiste objected below, factual findings are reviewed for clear error, rather than
under the more stringent plain error standard. See United States v. Garcia, 567


       2
         The Government argues that the seizure was per se unreasonable due to Battiste’s use
of force. We need not address this argument because we find that the seizure alone, isolated
from the use of force, contravenes the Fourth Amendment.

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F.3d 721, 735 (5th Cir. 2009).
       The record demonstrates that Battiste struck the decoy violently and
without provocation; slightly more than a minute later after the decoy was
secured in the police car, Battiste went through the decoy’s pockets and removed
the money. In sentencing Battiste pursuant to the Sentencing Guideline for
robbery, the district judge stated that in his view, the interaction between
Battiste and the decoy constituted robbery, which occurs when a person “by force
and violence, or by intimidation, takes or attempts to take from the person or
presence of another anything of value.” 18 U.S.C. § 2111. The district court
distinguished Battiste’s actions from theft, which does not involve any degree of
force, violence, or intimidation. The facts are undisputed, and thus the district
court did not clearly err.3
       For the foregoing reasons, we AFFIRM the conviction and sentence.




       3
          Battiste also contends that calculating his sentence under the base offense level for
robbery raises a problem under double jeopardy. However, because he raises this argument
for the first time in his reply brief, we decline to address it. See United States v. Jackson, 426
F.3d 301, 304 n. 2 (5th Cir. 2005) (“Arguments raised for the first time in a reply brief. . . are
waived.”).

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