     Case: 10-20007 Document: 00511376921 Page: 1 Date Filed: 02/09/2011




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

                                              FILED
                                                                   February 9, 2011

                                  No. 10-20007                      Lyle W. Cayce
                                                                         Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff - Appellee
v.

COREY A. RANEY,

                                            Defendant - Appellant




                 Appeal from the United States District Court
                      for the Southern District of Texas




Before D EMOSS, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:
      Appellant Corey Raney was convicted by a jury for being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g). He now appeals the
district court’s denial of his motion to suppress evidence obtained subsequent to
a traffic stop. He also asks this court to reverse his conviction on the basis of
allegedly improper remarks made by the prosecution during closing argument.
Because the government failed to establish an objective basis for the traffic stop,
we vacate the denial of the motion to suppress and render judgment in favor of
Raney. We also address the propriety of the prosecutor’s remarks during closing
argument.
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                                  No. 10-20007




                                        I.
      On September 15, 2008, Raney was stopped by Houston Police Officer
Rohan Walker for driving in the wrong lane of traffic. Following a search of his
person, Raney was arrested and indicted in a single count indictment for being
a felon in possession of a firearm. Before trial, Raney filed a motion to suppress
challenging the legality of the traffic stop. To establish the constitutionality of
the stop, the government offered the following evidence at the suppression
hearing and at trial.
      During the suppression hearing, Officer Walker testified that he and
Houston Police Officer John Watson had been settling disturbances stemming
from Hurricane Ike-related gasoline shortages at a gas station located at the
intersection of Almeda-Genoa Road and Chiswick Road. Cars waiting to enter
the gas station were backed up on the eastbound lane of Almeda-Genoa and the
southbound lane of Chiswick. Because Chiswick was the only street providing
access to a subdivision, cars attempting to exit the subdivision were also lined
up in the southbound lane. The record does not reflect which cars were waiting
to enter the gas station and which were waiting to exit the subdivision. Officers
Walker and Watson testified that the southbound lane of traffic on Chiswick was
blocked and thus access to and exit from the subdivision was limited to one lane.
Officers Walker and Watson were stationed on Chiswick and controlling traffic
by temporarily permitting vehicles not queuing for the gas station to travel in
the northbound lane of Chiswick, drive around the stopped cars, and exit the
subdivision. Officer Watson was stationed at the intersection and Officer Walker
was stationed north of the intersection on Chiswick.
      Raney’s car was in the line of cars traveling southbound on Chiswick
towards the intersection. Officer Walker testified that Raney pulled into the

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northbound lane of Chiswick without his direction and began driving
southbound at approximately ten to fifteen miles per hour. Officer Walker
signaled for Raney to turn onto a side street off of the northbound lane of
Chiswick. Raney immediately complied with Officer Walker’s direction. The
officers’ testimony did not establish the distance Raney had traveled between
where his car was waiting in line and the side street where he pulled into.
      Officer Walker testified that as he approached the stopped car, the car
windows were lowered and he could smell “a strong odor of marijuana.” Officer
Walker directed Raney to step out of the car. As Raney did so, Officer Walker
observed a brown object fall to the ground, which he believed to be a marijuana
cigarette. Officer Walker then signaled to Officer Watson that his assistance was
needed. Officer Walker detained Raney for the marijuana, placed Raney in
handcuffs, and conducted a search of his person. During the pat-down, Officer
Walker testified that he found a .45 caliber Sig Sauer firearm in the waistband
of Raney’s pants. A search of Raney’s car revealed ammunition in the glove
compartment. A criminal history check indicated that Raney had a prior felony
conviction. Raney was subsequently arrested for being a felon in possession of
a firearm.
      Afer presenting its evidence at the suppression hearing, the government
argued that it established that Raney committed three traffic violations: (1)
driving in the wrong lane of traffic, (2) failing to obey a police officer’s directions,
and (3) reckless driving, and thus the officers had an objective basis justifying
the traffic stop. Raney argued that because he did not actually commit a traffic
violation, Officer Walker did not have probable cause to conduct the initial traffic
stop and any evidence obtained from the subsequent search must be suppressed.
The district court held that Raney committed a traffic violation per se when he

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drove in the wrong lane of traffic, thus the officers had probable cause to conduct
the traffic stop. The district court did not make any findings with respect to the
government’s arguments that Raney failed to obey the police officer’s directions
or was driving recklessly.
      At trial, Raney’s sole defense was that he was not in possession of a
firearm at the time of his arrest. Officers Walker and Watson testified for the
government. The officers’ trial testimony was substantially similar to the
testimony offered at the suppression hearing. Raney’s wife Jasmine Raney
testified for the defense. Jasmine testified that she had been in the car with
Raney prior to the traffic stop, but left the car before Raney pulled out of line
because of an altercation between the two. She testified that on the day in
question, Raney was wearing a “muscle shirt” and gray cotton shorts with a
missing drawstring. She stated that she did not think Raney could have
concealed a gun in the shorts. She could not recall whether Raney had been
wearing the gray shorts after his release from custody later that day. She
further testified that she did not see a gun or ammunition before she left the car.
Finally, she stated that she saw Raney had been stopped and arrested but did
not approach or intervene.
      The jury found Raney guilty of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g). He was sentenced to 108 months’ imprisonment
and a three year term of supervised release. On appeal, Raney challenges the
denial of his motion to suppress. He also argues that the government committed
reversible error by making improper remarks during closing arguments.
                                        II.
      When reviewing the denial of a motion to suppress, we review a district
court’s factual findings for clear error and review de novo its legal conclusions

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under the Fourth Amendment. See United States v. Zavala, 541 F.3d 562, 573-74
(5th Cir. 2008). “A factual finding is not clearly erroneous as long as it is
plausible in light of the record as a whole.” United States v. Jacquinot, 258 F.3d
423, 427 (5th Cir. 2001). “[W]e may consider all of the evidence presented at
trial, not just that presented before the ruling on the suppression motion, in the
light most favorable to the prevailing party,” which in this case is the
government. United States v. Ibarra, 493 F.3d 526, 530 (5th Cir. 2007).
                                         A.
      The stop of a vehicle and detention of its occupants constitutes a “seizure”
under the Fourth Amendment. United States v. Brigham, 382 F.3d 500, 506 (5th
Cir. 2004) (en banc). However, “[a] police officer may stop a vehicle if he has
probable cause to believe a traffic violation has occurred.” United States v. Cole,
444 F.3d 688, 689 (5th Cir. 2006) (citing Whren v. United States, 517 U.S. 806,
810 (1996)). “The rule articulated by the Supreme Court in Whren provides law
enforcement officers broad leeway to conduct searches and seizures regardless
of whether their subjective intent corresponds to the legal justifications for their
actions.” United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998). “[T]he flip
side of that leeway is that the legal justification must be objectively grounded.”
Id. (citing Whren, 517 U.S. at 812-14). If the alleged traffic violation forming the
basis of the stop was not a violation of state law, there is no objective basis for
justifying the stop. See id. (citing Goodwin v. Johnson, 132 F.3d 162, 173 (5th
Cir. 1998)); Cole, 444 F.3d at 689; United States v. Lopez-Valdez, 178 F.3d 282,
288 (5th Cir. 1999). “[T]he constitutionality of the officer’s stop of [a defendant]’s
vehicle must stand or fall based on whether [the defendant] violated Texas law.”
Cole, 444 F.3d at 689. The government argues only that the stop was proper



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because Raney committed one or more traffic violations. Thus, this appeal
requires us to determine whether the stop was justified at its inception.
                                               B.
       The district court found that driving in the wrong lane of traffic was a per
se traffic violation justifying the stop. The Texas Transportation Code provides
that a driver shall drive on the right half of the roadway unless “the operator is
passing another vehicle; . . . an obstruction necessitates moving the vehicle left
of the center of the roadway and the operator yields right-of-way to a vehicle; .
. . or the operator is on a roadway restricted to one-way traffic.” T EX. T RANSP.
C ODE A NN. § 545.051(a) (West 1999). Because the plain language of the Code
provides limited exceptions to the general prohibition against driving in the
oncoming lane of traffic, the district court erred in determining that Raney had
committed a traffic violation per se. See Lopez-Valdez, 178 F.3d at 288 (finding
a traffic stop unconstitutional because the reason for the stop was not actually
a violation); Miller, 146 F.3d at 278-79 (finding that a plain reading of the
statute did not support the officer’s stated reason for the traffic stop).
       Raney arguably crossed into the oncoming lane of traffic to pass the line
of cars waiting to enter the gas station, which, as recognized by the government,
“entirely blocked” the road for cars attempting to exit the subdivision,
circumstances that may constitute an obstruction or limit travel to one lane of
traffic. See T EX. T RANSP. C ODE A NN. §§ 545.051(a). Moreover, the government
essentially concedes in its brief that Raney did not violate this Code provision.1


       1
         We respectfully disagree with the dissent that the record establishes that an exception
to the general prohibition of driving in the wrong lane of traffic has not been met. The district
court made only one finding– that Raney committed a traffic violation by driving in the wrong
lane of traffic. The government, not the defendant, carries the burden of establishing that a
traffic violation has been committed. The government failed to offer evidence before the

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However, the government argues that Raney committed the alternative traffic
violations raised during the suppression hearing: (1) failure to obey a police
officer’s directions and (2) reckless driving. We consider each in turn.
                                                C.
       The government argues that Raney violated the law when he failed to obey
Officer Walker’s traffic signals. Although not identified by the parties, the
government is presumably asserting that Raney violated Code provision §
542.201(1), which states that “[a] person may not willfully fail or refuse to
comply with a lawful order or a direction of . . . a police officer.” T EX. T RANSP.
C ODE § 542.501(1) (West 1999). At the suppression hearing, the district court
stated it had not made a finding on “whether or not it would be a fair inference
that [Raney] was aware that the officers were directing traffic.”
       There is no evidence in the record demonstrating that Raney was aware
that the officers were directing traffic. The evidence establishes that Officers
Watson and Walker were approximately 100 feet, or one-half a block, apart and
could see each other. Officer Watson was directing traffic at the intersection of
Chiswick and Almeda-Genoa and Officer Walker was stationed in the
northbound lane of Chiswick, south of the side street where Raney was searched.
The evidence further established that the line of cars on Chiswick extended
north of the side street by “at least” five to seven cars. Officer Walker testified
at trial that he had positioned himself such that “they,” the cars in line on



district court or argue in its briefing the applicability of said exceptions. The record establishes
that this was more than a “garden-variety traffic jam.” Officer Walker testified that when he
arrived at the gas station, there were “disturbance calls coming in from all angles, roads were
blocked off, and it was a real mess.” The cars lined up on the southbound lane of Chiswick
blocked the only exit from the subdivision. As such, the record does not demonstrate that
Raney affirmatively committed a traffic violation.

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Chiswick, could see him. However, he did not testify that he could see Raney’s
vehicle or establish that Raney could have seen him or have been aware that he
was directing traffic. Further, Officer Watson testified that their patrol car was
parked at the gas station at the intersection of Almeda-Genoa and Chiswick.
Finally, the evidence established that Raney complied with all of the officers’
instructions as soon as he pulled into the northbound lane of traffic and became
aware of Officer Walker’s presence. Because the government did not offer
evidence to establish that Raney was aware of the presence of the officers, we
find that Raney did not violate § 542.201(1).
                                       D.
      Under Texas law, a driver commits the offense of reckless driving if he
“drives a vehicle in wilful or wanton disregard for the safety of persons or
property.” T EX. T RANSP. C ODE A NN. § 545.401(a) (West 1999). “In the context of
reckless driving, ‘willful and wanton disregard’ means the deliberate and
conscious indifference to the safety of others.” Brown v. State, 183 S.W.3d 728,
733 (Tex. App.—Hous. [1st Dist.] 2005, pet. ref’d) (quotations and citation
omitted). The district court declined to make a specific finding on “whether or
not driving on the wrong side of the street heading towards a police officer or
simply driving on the wrong side of the street is reckless per se.”
      Officer Walker testified that he believed Raney was driving recklessly
when he pulled into the northbound lane where Officer Walker was standing
simply because Officer Walker “would have been hit” if he had not moved. This
argument is specious. Recklessness clearly requires a showing of willful and
wanton disregard for the persons or property of others. See id. Officer Walker
testified that Raney was driving approximately ten to fifteen miles per hour in
a lane with no oncoming traffic. Officer Walker did not testify as to the distance


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between where he was standing and Raney’s car after it pulled into the
northbound lane, did not testify that Raney was ever close to hitting him, nor did
he testify that Raney could not have safely stopped or changed course before
reaching Officer Walker. The government did not present evidence to establish
that other cars had entered the northbound lane of traffic or that Raney’s driving
was likely to have caused injury to persons or property. Finally, the evidence
does not establish that Raney was aware that the officers were directing traffic
at the time he initially pulled into the opposing lane of traffic and thus could not
have been driving with willful and wonton disregard for the safety of others. As
such, there is insufficient evidence in the record to establish that Raney violated
§ 545.401(a).
                                          E.
      Although the government does not so request, this court generally
remands to the district court to make factual findings on probable cause in the
first instance. See Devenpeck v. Alford, 543 U.S. 146, 156 (2004) (declining to
address issue of probable cause in the first instance on appeal); Cole, 444 F.3d
at 688 (remanding for factual development to determine whether a traffic
violation had been committed because the court was unable to “resolve the
legality of the stop without additional fact finding”).
      At the suppression hearing, the government presented evidence to
establish that Raney committed three traffic violations: (1) driving in the wrong
lane of traffic, (2) disobeying an officer directing traffic, and (3) reckless driving.
The government bears the burden of proving that the stop was constitutional
when, as here, the stop and search were conducted without a warrant. See
United States v. Guerrero-Barajas, 240 F.3d 428, 432 (5th Cir. 2001). Thus, the
suppression hearing provided the government the opportunity and obligation to


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present evidence establishing the validity of the traffic stop. Although the
district court did not make specific findings on failure to obey and reckless
driving, the record has nonetheless been developed as to these arguments. We
will not afford the government a second opportunity to present evidence to the
district court in an attempt to meet their burden of proof. Because the
government failed to establish the necessary objective basis justifying the traffic
stop, we need not remand on these grounds.2
                                               F.
       The government asserts for the first time on appeal that Raney committed
other violations of Texas law in an attempt to establish the necessary objective
basis: (1) failure to stay within a single lane on a roadway divided into two or
more clearly marked lanes outside of which he could not safely move, T EX.
T RANSP. C ODE A NN. § 545.060(a) (West 1999); (2) changing lanes within 100 feet
of an intersection, T EX. T RANSP. C ODE A NN. § 545.056(a) (West 1999); (3)
changing lanes when the road was not clearly visible and free from approaching
traffic, T EX. T RANSP. C ODE A NN. § 545.054(a) (West 1999); and (4) interfering
with the performance of a peace officer’s duties, T EX. P EN. C ODE. A NN. §
38.15(a)(1) (West 2003).



       2
          The government asserts for the first time on appeal that the officers had reasonable
suspicion to believe that Raney was committing a traffic violation. Raney argues that this
court should not consider arguments that lower the government’s burden of proof on appeal
and that were not raised before the district court. Our case law is clear that unless a
defendant actually committed a traffic violation, there is no objective basis for the stop in the
context of a traffic stop. See, e.g., Whren v. United States, 517 U.S. 806, 808-10 (1996); United
States v. Cole, 444 F.3d 688, 689 (5th Cir. 2006); United States v. Lopez-Valdez, 178 F.3d 282,
288 (5th Cir. 1999); United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998). Because an
officer’s reasonable suspicion that a traffic violation occurred requires the same objective basis
as probable cause for a traffic stop, i.e., that a traffic law was actually violated, we need not
undertake a separate analysis.

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        Raney argues that this court should consider these grounds forfeited
because they were raised for the first time on appeal. See United States v.
Scroggins, 599 F.3d 433, 448 (5th Cir. 2010) (“[F]ailure to raise specific issues
or arguments in pre-trial suppression proceedings operates as a waiver of those
issues or arguments for appeal.”) (emphasis and quotations omitted). We need
not determine whether the government forfeited these bases because assuming
arguendo that it did not, we find that the evidence does not support a finding
that Raney committed these traffic violations.
        The evidence establishes that Raney did not violate Texas Transportation
Code §§ 545.060(a) and 545.054(a). Section 545.060(a) states that “[a]n operator
on a roadway divided into two or more clearly marked lanes for traffic: (1) shall
drive as nearly as practical entirely within a single lane; and (2) may not move
from the lane unless that movement can be made safely.” Section 545.054(a)
states that “[a]n operator may not drive on the left side of the center of the
roadway in passing another vehicle unless . . . the left side is clearly visible and
free of approaching traffic for a distance sufficient to permit passing without
interfering with the operation of the passed vehicle or a vehicle approaching
from the opposite direction.” There is no evidence in the record to establish that
Raney could not move safely into the northbound lane. The evidence
demonstrates that the northbound lane was free of traffic at the time Raney
pulled into it. The evidence does not establish that Raney could not have moved
safely around the line of waiting cars at the speed of ten to fifteen miles per
hour.
        The evidence further demonstrates that Raney did not violate Texas
Transportation Code § 545.056(a). Section 545.056(a) states that “[a]n operator
may not drive to the left side of the roadway if the operator is . . . approaching


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within 100 feet of an intersection.” Officer Watson testified that he was
positioned at the intersection of Almeda-Genoa and Chiswick, approximately 100
feet south from where Officer Walker was stationed on Chiswick. Officer Walker
testified that the line of cars north of his position was “at least” five to seven cars
long. Thus, the testimony demonstrates that Raney was not within 100 feet of
an intersection.
       Finally, the evidence establishes that Raney did not violated Texas Penal
Code § 38.15(a)(1). Section 38.15(a)(1) states that “[a] person commits an offense
if the person with criminal negligence interrupts, disrupts, or otherwise
interferes with . . . a peace officer while the peace officer is performing a duty or
exercising authority imposed or granted by law.” T EX. P EN. C ODE. A NN. §
38.15(a)(1). Just as there is no evidence establishing that Raney was aware that
a peace officer was performing his duties, there is no evidence demonstrating
that Raney acted with criminal negligence when he pulled into the northbound
lane at ten to fifteen miles per hour to move around a line of traffic.
       Because the government did not establish that Raney committed a traffic
violation on any of the argued grounds, we find that as a matter of law there was
no objective basis justifying the traffic stop. We therefore vacate the district
court’s denial of Raney’s motion to suppress and render an acquittal.3

       3
          Rendering judgment is appropriate in this case because without a legal justification
of the stop, the subsequent search and arrest were unconstitutional and any evidence obtained
therefrom are inadmissible. See Lopez-Valdez, 178 F.3d at 289. We further find that the police
officer’s reasons for the traffic stop do not “pass muster under the good-faith exception to the
exclusionary rule.” Id. (“[I]f officers are allowed to stop vehicles based upon their subjective
belief that traffic laws have been violated even where no such violation has, in fact, occurred,
the potential for abuse of traffic infractions as pretext for effecting stops seems boundless and
the costs to privacy rights excessive.”); see also Cole, 444 F.3d at 689 (finding “no case in this
circuit which has relied on the good faith exception to justify a traffic stop when the police
officer erroneously believed the conduct he observed was a traffic violation” and further
holding that “[i]f [defendant] did not violate [the traffic laws], the stop is not justified and the

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                                             III.
       Raney also challenges several statements made by the prosecutor during
closing arguments. First, in reference to the firearm found on Raney, the
prosecutor stated that “[t]he gun was loaded, a round in the chamber, ready to
be fired. Bang, bang, bang.” Raney did not object. Next, the prosecutor told the
jury that “Jasmine Raney’s testimony . . . directly accus[ed] the officers of lying
to you [and] planting evidence.” Raney objected. The district court sustained the
objection and issued a curative instruction. Finally, the prosecutor asked the
jurors to decide whether the police officers had a motive to “tell something other
than truth,” and indicated that they did not by asking “[w]ere the officers going
to put their careers on the line?” Raney objected. The district court sustained the
objection and issued a curative instruction.4
       This court uses a two-step analysis to determine whether the prosecutor’s
remarks constitute reversible error. See United States v. Munoz, 150 F.3d 401,
414 (5th Cir. 1998).       First, this court determines whether the prosecutor’s



motion to suppress should be granted without regard to the officer’s subjective good faith.”);
United States v. Granado, 302 F.3d 421 (5th Cir. 2002); cf. United States v. Nichols, 142 F.3d
857, 860 n.1 (5th Cir. 1998) (noting that this circuit’s application of the good faith exception
to reasonable suspicion determinations always involve “circumstances extrinsic to the
government agent’s personal observation at the time of the stop”).
       4
         A fourth remark which Raney challenges was the prosecutor’s statement during
closing argument that any discrepancies in the polices officers’ testimonies, specifically
whether Raney was wearing jeans or jean shorts at the time of the stop and whether Raney
was handcuffed during the pat-down were “understandable because [the police officers] were
probably thinking about how they’re going to repair their homes [and] take care of their
families.” The district court overruled Raney’s objection. On appeal, Raney argues that this
statement intended to “inflame the jury’s passions” and garner the jury’s sympathy. Although
the government is prohibited from appealing to passion or prejudice in order to inflame the
jury, we find that the prosecution’s remark does not have a strong enough prejudicial effect
to constitute reversible error. See United States v. Crooks, 83 F.3d 103, 107 n.15 (5th Cir.
1996).

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remarks were improper. Id. If an improper remark was made, this court next
determines whether the remark “prejudiced the defendant’s substantive rights.”
Id. at 415. The prejudice determination involves “(1) the magnitude of the
statement’s prejudice, (2) the effect of any cautionary instructions given, and (3)
the strength of the evidence of the defendant’s guilt.” United States v. Tomblin,
46 F.3d 1369, 1389 (5th Cir. 1995). “The magnitude of prejudicial effect is
measured by ‘looking at the prosecutor’s remarks in the context of the trial in
which they were made and attempting to elucidate their intended effect.’” United
States v. Ramirez-Velasquez, 322 F.3d 868, 875 (5th Cir. 2003) (quoting United
States v. Fields, 72 F.3d 1200, 1207 (5th Cir. 1996)). When determining whether
a prosecutor’s comment was improper, we look at the comments in context of the
proceedings as a whole. See United States v. Washington, 44 F.3d 1271, 1278
(5th Cir. 1995).
      Because we have found that Raney’s conviction cannot stand as a matter
of law, we need not actually determine whether the remarks constituted
reversible error. However, we feel it prudent to address this issue because the
government has been cautioned repeatedly by this court against making such
arguments, yet we continue to face them on appeal.
      A prosecutor is “not permitted to make an appeal to passion or prejudice
calculated to inflame the jury.” United States v. Crooks, 83 F.3d 103, 107 n.15
(5th Cir. 1996). During closing arguments, “[a] prosecutor is confined in closing
argument to discussing properly admitted evidence and any reasonable
inferences or conclusions that can be drawn from that evidence.” United States
v. Vargas, 580 F.3d 274, 278 (5th Cir. 2009). This court has also “held it
improper for a prosecutor to ask a jury the rhetorical question whether federal
agents would risk their careers to commit perjury” thereby implying that

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because they are government officials they would not lie. United States v.
Gracia, 522 F.3d 597, 600-02 (5th Cir. 2008) (finding it improper for the
prosecutor to ask the jury whether the federal agents “would put their careers
. . . on the line for committing the offense of aggravated perjury”); see also United
States v. Pittman, 2010 WL 4561398, at *3 (5th Cir. Nov. 12, 2010) (unpublished)
(finding the prosecutor improperly bolstered federal agents’ credibility by
indicating that “they ‘were just doing their job’ and had no reason to lie”);
Ramirez-Velasquez, 322 F.3d at 873-74 (finding improper the prosecutor’s
rhetorical question asking the jury “[d]o the agents have any reason? Do they
have a reason to throw away their career, to say, . . . I’m going to give up my
twenty-year law enforcement career, because I really care that two people get
convicted”); United States v. Gallardo-Trapero, 185 F.3d 307, 319-21 (5th Cir.
1999). Further, it is improper for a prosecutor to vouch for the credibility of a
federal agent because this type of statement impermissibly invokes the “aegis
of a governmental imprimatur.” See id. at 320.
      It is troubling to this court that the government made these types of
improper remarks in the present matter because the primary inculpatory
evidence was the testimony of the law enforcement witnesses whose credibility
was bolstered by the prosecution. As emphasized numerous times by the
prosecutor during closing argument, this case came down to the credibility of
Jasmine Raney and the police officers. The prosecution told the jury: “Who are
you going to believe; that’s what this case is about”, and later stated, “Who do
you believe? Officers Walker and Watson or Jasmine Raney? That’s it . . . .” The
prosecutor then proceeded to diminish Jasmine Raney’s credibility by telling the
jury to “make no mistake . . . [she] is directly accusing Officers Walker and
Watson of lying to you, of planting evidence.” Although Raney’s defense that he

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did not possess a weapon arguably supports such an inference, this argument
was not proper when it directly attributed the accusation to the sole defense
witness who did not actually offer such testimony. In fact, Jasmine Raney
testified that she never saw a gun and based on the shorts Raney was wearing,
she did not believe that a gun could have been hidden in the waistband. She
further testified that she was not present at the time of the stop and thus could
not say whether there was a gun on his person when he was searched. The
government then proceeded to improperly bolster the credibility of the police
officers by improperly telling the jury that they had “no reason to risk their
careers” by lying. On rebuttal, the prosecutor again emphasized to the jury that
this was “a case of credibility.” In Gracia, this court found comments similar to
those made in the present matter reversible under the plain error standard of
review. 522 F.3d at 601. Raney does not face such a burden, which suggests that
“less compelling facts” could warrant reversal in his case. See United States v.
McCann, 613 F.3d 486, 497 (5th Cir. 2010).
      Despite our precedent clearly condemning such remarks, the government
continues to disregard our admonishments. Indeed, the government conceded as
much at oral argument by stating “cases in the Fifth Circuit ha[ve] admonished
the government [not to] make such statements” and “we have been admonished
and encouraged not to do that time after time.” Further frustrating the issue is
the quandary defendants often find themselves in: if they object to improper
remarks during the trial, they likely receive a curative instruction that
frequently forms the basis for this court to affirm; if they do not object in order
to avoid this result they have to overcome the very difficult hurdle of plain error
review. These types of improper remarks substantially effect a defendant’s rights
and the integrity of this court. As such, we write once more to do all that we


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                                   No. 10-20007




can–state clearly and unequivocally that these types of remarks and arguments
are improper and if the government continues to ignore our reproval, perhaps
it is time for this court to reconsider our jurisprudence on curative instructions
and plain error in this context.
                                       IV.
      For the foregoing reasons, we VACATE the judgment of the conviction and
RENDER judgment of acquittal in favor of the defendant.


VACATED and RENDERED.




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                                        No. 10-20007

BENAVIDES, Circuit Judge, dissenting.
       I respectfully dissent. I would affirm the district court’s suppression
ruling: the stop was justified because Raney violated the law by driving on the
wrong side of the road. Uncontested record evidence indicates that at the time
of the stop, Raney was driving on the lefthand side of the road, which is a
violation of Texas Transportation Code § 545.051(a) except in limited
circumstances. None of those exceptions apply here. That said, in light of the
Government’s improper arguments at trial, as discussed by the majority, I
believe this panel should reach the appellant’s argument that the Government’s
improper arguments constitute reversible error.
       The majority reverses the district court’s suppression ruling, holding that
the district court erred in finding probable cause because Raney was driving on
the wrong side of the road at the time of the stop. In particular, the majority
takes umbrage with the district court’s conclusion that driving on the wrong side
of the road is a per se traffic violation. I do not understand this to be the district
court’s holding.1 Moreover, even if the district court misstated the law, we
should still consider independently whether Raney violated § 545.051(a).


       1
           After finding that Raney violated the Texas Transportation Code’s prohibition on
driving on the left side of the road, the district court did comment that “Mr. Raney committed
a traffic violation by driving on the wrong side of the road, period.” However, in context, I do
not believe the district court used the term “period” to mean “per se.” Consider the full text
of the court’s comment:
        I am a little bit on the fence, frankly . . . about where Mr. Raney was and
        why—and whether or not it would be a fair inference that he was aware that
        the officers were directing traffic, but I don’t believe I need to get there. Mr.
        Raney committed a traffic violation by driving on the wrong side of the street,
        period.
The government had presented three alternative grounds for probable cause: driving on the
wrong side of the road, reckless driving, and disobeying a police officer. Essential to both of
these latter offenses was exactly where Raney’s vehicle was located and whether he was aware
that the officers were directing traffic. But the district court held that it need not make these
factfindings because “Mr. Raney committed a traffic violation by driving on the wrong side of
the street, period.” Thus, I understand the district court’s use of “period” here to mean “end
of discussion,” not that driving on the wrong side of the street is a per se traffic offense.

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                                       No. 10-20007

Remand would be appropriate if there were contested factual issues, like
whether Raney actually drove on the lefthand side of the street.2 But here, there
is no dispute as to the facts relevant to § 545.051(a), only as whether Raney’s
undisputed conduct constituted an offense.                 Whether particular conduct
constitutes an offense is a question of law we review de novo.3 There is no
reason this panel should not apply the correct law to the undisputed facts in the
record before us.
       Raney’s conduct violated § 545.051(a), and none of the statutory exceptions
apply. That statute provides:
       An operator on a roadway of sufficient width shall drive on the right
       half of the roadway, unless:
              (1) the operator is passing another vehicle;
              (2) an obstruction necessitates moving the vehicle left of the
              center of the roadway and the operator yields the right-of-way
              to a vehicle that:
              (A) is moving in the proper direction on the unobstructed
              portion of the roadway; and
              (B) is an immediate hazard . . . .4



       2
         United States v. Cole, 444 F.3d 688, 690 (5th Cir. 2006) (remanding a motion to
suppress because “factual findings”—specifically, whether an intersection had a crosswalk and
where an approaching vehicle had stopped—were needed to determine whether the defendant
violated state law).
       3
         See United States v. Williams, 602 F.3d 313, 315 (5th Cir. 2010) (“The sufficiency
challenge requires determining what conduct constitutes an offense under § 111(a)(1). The
court reviews questions of statutory interpretation de novo.” (citing United States v. Kay, 359
F.3d 738, 742 (5th Cir.2004)).
       4
        TEX . TRANSP . CODE § 545.051(a). The statute provides for two other exceptions, both
of which are plainly irrelevant in this case. One exception is where “the operator is on a
roadway divided into three marked lanes for traffic,” and the other is where “the operator is
on a roadway restricted to one-way traffic.” Because undisputed record evidence establishes
that Chiswick is a two-lane, two-way street we need discuss these exceptions no further.

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                                        No. 10-20007

It is undisputed that Raney was driving on the left half of Chiswick when the
officers effected the stop. Thus, the relevant question is whether any of the
statutory exceptions apply.
       Neither the exception for passing another vehicle nor the exception for
avoiding an obstruction applies here. As to the first of these, Raney’s driving on
the left side of the road cannot properly be termed “passing.”                 The Texas
Transportation Code explains: “‘Pass’ or ‘passing’ used in reference to a vehicle
means to overtake and proceed past another vehicle moving in the same
direction as the passing vehicle or to attempt that maneuver.”5 Thus, this
statutory definition of “passing” is plainly limited to moving vehicles. Further,
the definition is further limited to passing “another vehicle.” Driving on the
wrong side of the road in attempt to bypass a line of cars stopped in traffic is not
passing “another moving vehicle,” and this exception does not apply by the
statute’s plain language.
       The second statutory exception, avoidance of an obstruction, is similarly
inapplicable. I disagree with the majority that the line of cars waiting to enter
the gas station “constitutes an obstruction.”            Uncontested record evidence
indicates that this was a garden-variety traffic jam.6 It was not, for instance, a
situation where a stalled car blocked the righthand lane. I decline to join the
majority in holding that an ordinary traffic jam is an “obstruction” that would
make driving on the wrong side of the road legal under Texas law for two
reasons. First, I cannot imagine that the Code’s drafters intended to allow
anyone who does not care to wait in traffic to drive with impunity on the wrong



       5
           Id. § 545.001(1) (emphasis added).
       6
        Indeed, Raney did not present evidence at the hearing that, at the time of the stop,
he was passing another vehicle or attempting to avoid an obstruction in the roadway. Indeed,
he did not even argue to the district court that either the “passing” or the “avoiding an
obstruction” exception to § 545.051(a) applies here.

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                                        No. 10-20007

side of the street. Second, even if a traffic jam is an “obstruction” under the
Code, the majority neglects a crucial portion of the statute: driving on the left
side is only permitted when “an obstruction necessitates moving the vehicle left
of the center of the roadway.”7 The Code also does not define “necessitate,” but
I cannot think that an ordinary traffic jam is the kind of obstruction that
necessitates driving on the wrong side of the road. To interpret the statute
otherwise would invite chaos.
       Finally, I disagree with the majority that the Government “essentially
conced[ed]” that Raney did not violate § 545.051(a). To be sure, the Government
did not directly address Raney’s argument on appeal that he did not violate §
545.051(a) because he was “passing” or avoiding an obstruction. But this does
not relieve the appellant of his burden to raise arguments explaining why the
district court’s judgment was in error.8 The Government’s poor treatment of the
issue does not render the district court’s judgment incorrect, and Raney does not
win his argument against affirmance by default. We must ask whether he is
correct that he did not violate § 545.051(a). His argument to that effect is
unpersuasive. He merely quotes the statute and asserts, in conclusory fashion,
that he was authorized to “pass other vehicles” or “pass an obstruction.” He
provides no authority, from the statute or otherwise, to indicate that his conduct
in fact constitutes “passing” or “avoiding an obstruction.”                  And as I have




       7
           Id. § 545.051(a)(2) (emphasis added).
       8
         FED . R. APP . P. 28(a)(9)(A) (“The appellant’s brief must contain . . . [an] argument,
which must contain ... appellant's contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant relies.”); cf. Int’l Women’s Day
March Planning Comm. v. City of San Antonio, 619 F.3d 346, 369 n.31 (5th Cir. 2010) (“While
San Antonio does bear the burden of showing narrow tailoring, this does not relieve the
plaintiffs of their obligation as appellants to raise arguments explaining why the district
court’s grant of summary judgment to San Antonio was erroneous.” (internal citation
omitted)).

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                                  No. 10-20007

explained, the far better view is that his driving on the wrong side of the street
was neither of these things.
      I turn briefly to the subject of the Government’s use of various lines of
improper argument. Like my colleagues in the majority, I am deeply troubled
by the Government’s persistence in making such improper arguments despite
our repeated admonishments.       The majority does not, however, reach the
question of whether such improper arguments constitute reversible error. In my
view, the panel should reach this question. In any event, I dissent from the
majority’s decision to overturn the district court’s denial on the suppression
motion and its judgment ordering an acquittal.




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