     Case: 14-50794   Document: 00513241119       Page: 1   Date Filed: 10/21/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT

                                   No. 14-50794


UNITED STATES OF AMERICA,

            Plaintiff - Appellee

v.

JESSE DOMINGUEZ,

            Defendant - Appellant



CONSOLIDATED WITH 14-50823


UNITED STATES OF AMERICA,

            Plaintiff - Appellee

v.

CRYSTAL DOERR,

            Defendant - Appellant




               Appeals from the United States District Court
                    For the Western District of Texas


Before STEWART, Chief Judge, and JOLLY and GRAVES, Circuit Judges.
PERCURIAM:
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                                  No. 14-50794


      The Court having been polled at the request of one of its members, and
a majority of the judges who are in regular active service and not disqualified
not having voted in favor (Fed. R. App. P. 35 and 5th Cir. R. 35), rehearing en
bane is DENIED. In the en bane poll, seven judges voted in favor of rehearing
(Judges Jones, Smith, Clement, Owen, Elrod, Higginson, and Costa) and eight
judges voted against rehearing (Chief Judge Stewart and Judges Jolly, Davis,
Dennis, Prado, Southwick, Haynes, and Graves).


ENTERED FOR THE COURT:


Isl E. Grady Jolly

E. GRADY JOLLY
United States Circuit Judge


                               * * * * * * * *

      JERRY E. SMITH, Circuit Judge, joined by JONES, CLEMENT, and
OWEN, Circuit Judges, dissenting from the denial of rehearing en bane:

      Rehearing has failed by a tally of 7-8. That is unusually strong support
for en bane review of an unpublished opinion in response to which no party
moved for rehearing. One might agree with Yogi Berra that "it's deja vu all
over again." See Robinson v. Louisiana, 791 F.3d 614, 615 (5th Cir. 2015)
(Smith, J., dissenting from denial of rehearing en bane) (criticizing 7-8 denial
on sua sponte en bane poll on an unpublished opinion). I respectfully dissent
from the refusal to give the full court a chance to reconcile our conflicting jur-
isprudence on this important aspect of Fourth Amendment law.

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                                  No. 14-50794
      Federal Rule of Appellate Procedure 35(a) states, as one of the two
grounds for en bane rehearing, that "en bane consideration is necessary to
secure or maintain uniformity of the court's decisions." Despite that a member
of the panel, in oral argument, admitted that on the matter of Border Patrol
stops, "our opinions go all over the map," the en bane court disregards
Rule 35(a).    The panel also somehow overlooked the government briefs
repeated citation to a recent opinion, reaching the opposite result, with facts
materially identical to those here, regarding a Border Patrol stop on the same
highway and with a similar pattern of behavior.

      The panel decided not to address the facts or the law but, instead, issued
an opinion that reads, in its entirety, as follows:
     We have read the record, studied the briefs, and heard very capable
   arguments from both parties. We have concluded, in the light of our
   precedents, that reasonable suspicion is not supported by the facts in
   this case. Too many of the asserted bases for reasonable suspicion can
   plausibly be explained as normal or innocent conduct; and from which,
   criminal suspicion under the Fourth Amendment cannot convincingly
   be inferred.   Accordingly, the judgment of the district court is
   REVERSED and VACATED. The case is REMANDED for entry of a
   judgment of acquittal.
United States v. Dominguez, 611 F. App'x 247, 247 (5th Cir. 2015) (per curiam).

      The panel has not disclosed the facts, but I will. The district court made
the following comprehensive findings:
   1. U.S. Customs and Border Protection Agent Juan David Ortiz testi-
   fied at the Motion to Suppress hearing on February 27, 2014. From
   2001-2009 Agent Ortiz served in the United States Navy during which
   he earned a Bachelor's Degree from American Military University. In
   2009, Agent Ortiz joined the U.S. Customs and Border Protection Ser-
   vice. Agent Ortiz received specialized training in the investigation and
   interdiction of narcotics and human trafficking offenses. During his
   time with the U.S. Customs and Border Protection, Agent Ortiz earned
   a Master's Degree from St. Mary's University. Agent Ortiz has spent
   countless hours observing traffic patterns on Interstate (IH) 35, and

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                             No. 14-50794
has experience investigating human and narcotics trafficking.        The
Court finds the testimony of Agent Ortiz credible.
2. On December 17, 2013, Agent Ortiz was conducting roving patrol in
a marked unit on IH 35 around mile marker 112, near Moore, Texas, in
the Western District of Texas. Mile marker 112 is roughly 112 miles
from the Texas/Mexico border.
3. Agent Ortiz was part of the Highway Interdiction team whose duties
are to observe vehicles traveling on IH-35 with the goal of intercepting
vehicles engaged in narcotics trafficking, human trafficking, etc. In his
duties, Agent Ortiz became familiar with the most common types of
traffic on that particular stretch of IH-35, such as oil field trucks,
hunting and ranch vehicles, and tourist vehicles.
4. At approximately 10:30am on December 17, 2013, Agent Ortiz
noticed a maroon Ford Expedition traveling southbound on IH-35.
Agent Ortiz noticed that it was only occupied by passenger Crystal
Doerr and driver Jesse Dominguez. The vehicle caught Agent Ortiz's
attention because it was different than the majority of traffic on that
stretch of highway. It wasn't a working vehicle; it wasn't muddy or
dirty from a ranch; and it didn't appear to have any luggage or signs
that the two individuals were on a trip. Agent Ortiz did not conduct a
traffic stop.
5. Three hours later, at approximately 1:30pm, Agent Ortiz observed
the defendants' maroon Ford Expedition travelling northbound on
IH-35, with a passenger in the back seat that he did not see when the
vehicle was travelling southbound.           ·
6. Agent Ortiz received information from dispatch that the defendants'
maroon Ford Expedition never passed through a border checkpoint
between the time they traveled southbound· and then northbound.
There are roads in the area used to circumvent the border check points.
7. Agent Ortiz paralleled the maroon vehicle for 2-3 miles, but driver
Dominguez, and passenger Doerr, never looked in his direction at all.
Agent Ortiz made his presence clear and obvious, but the passengers
remained stiff and faced forward. This was peculiar to Agent Ortiz.
8. Agent Ortiz observed the new, third passenger in the back seat.
When Agent Ortiz noticed the small head, he determined it was a small
child who was not restrained in a visible child safety seat.
9. Agent Ortiz fell in behind the maroon vehicle and ran the vehicle
plates, which came back to passenger Crystal Doerr, San Antonio,

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                                  No. 14-50794
   Texas. Agent Ortiz observed that Dominguez had reduced his speed
   15 mph, and was traveling 60 mph in a 75 mph zone. Also, Dominguez
   was weaving on the shoulder, was unable to maintain a single lane of
   travel, and was tapping the brakes.
   10. The presence of an unrestrained child in a vehicle travelling errati-
   cally on the interstate further led to the belief that the child did not
   belong to Dominguez and/or Doerr and that the child was potentially
   being trafficked.
   11. Agent Ortiz conducted a traffic stop on IH 35 around mile
   marker 120.
   12. Reasonable suspicion existed to conduct an investigative traffic stop
   based on the above facts to further investigate whether Dominguez and
   Doerr were engaged in the human trafficking of the child.
   13. At the scene of the traffic stop, Agent Ortiz learned that the child
   was a 4 year old girl from Mexico who was illegally present in the United
   States. Dominguez and Doerr were hired to transport the illegal child
   from the Cotulla/Dilley area north to San Antonio. Dominguez and
   Doerr were to be paid money to traffic the illegal child. Dominguez and
   Doerr were both arrested for violating Title 8, United States Code, Sec-
   tion 1324, Bringing in and Harboring Certain Aliens.
   14. At the U.S. Customs and Border Protection station, both Dominguez
   and Doerr waived their Miranda rights and confessed that they knew
   the child was illegally present in the United States. They stated they
   picked up the child in Dilley, Texas from a couple that smuggled her
   over the Texas/Mexico border. Dominguez and Doerr travelled north-
   bound on IH 35 with the child towards San Antonio. Dominguez and
   Doerr also stated that they were to be paid money to transport the child
   to San Antonio.

       In its brief, the government several times cited United States v. Munoz-
Martinez, 435 F. App'x 333 (5th Cir. 2011) (per curiam), as "a strikingly similar
case," and I agree. It is also "striking" that neither defendant tackled that case
in reply. I will do so now.

       The Munoz-Martinez panel explained its facts as follows:
     On the evening of December 2, 2009, Fernando Munoz-Martinez
   was driving a pickup-truck south on Interstate 35. Near Artesia Wells,
   Texas, which is about 56 miles north of the border with Mexico, two
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                                 No. 14-50794
   Border Patrol agents observed a pickup-truck exit onto Highway 133.
   Ten to 15 minutes later, the agents saw what appeared to be the same .
   truck return onto I-35 and head north. After following the vehicle for
   seven miles, the agents suspected that it was involved in alien smug-
   gling.... The agents made an investigatory stop and discovered eight
   illegal aliens in the truck, including the driver, Munoz-Martinez.


           The agents testified that according to a computer check of the
   license plate, Munoz-Martinez had not recently passed through the
   border checkpoint on I-35 .
       . . . The agents testified that the area where Munoz-Martinez was
   stopped is notorious for drug-and alien-smuggling activity. Moreover,
   Munoz-Martinez's purple, low-riding pickup-truck aroused suspicion,
   as it was atypical of traffic in the area, which primarily included
   vehicles related to the oil industry, ranching, and hunting. . .. There
   was testimony that a truck such as this traveling on the state highway
   in this area after exiting the Interstate was unusual.
       Munoz-Martinez's driving behavior was also reasonably suspicious.
   He initially drove south on I-35, exited into a rural area with no houses,
   then returned to I-35, northbound. While the agents were driving par-
   allel to Munoz-Martinez's vehicle, they witnessed the head of a previ-
   ously unseen third passenger "pop up" between the driver and the sec-
   ond passenger, and then return back down. Further, it was suspicious
   that Munoz-Martinez dramatically slowed his vehicle's speed in half,
   to about 30 miles-per-hour in a 65 miles-per-hour zone, when he became
   aware of the agents' presence, though he was never speeding.
       Also to be considered is that neither agent had been employed by
   the Border Patrol for more than a year-and-a-half. One of the agents
   testified about his experience with smugglers' reactions to law enforce-
   ment and stated that he had been involved in smuggling stops after
   witnessing "bailouts" five or six times. Such testimony indicates that
   during his brieftime as an agent, he had accumulated pertinent experi-
   ence and that he was relatively knowledgeable.

Id. at 334-35.

      The factual similarities between Munoz-Martinez and Dominguez are
almost too numerous to list:

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                                 No. 14-50794
     • Both apprehensions were on Interstate 35 between Laredo and San
   Antonio, a route notorious for alien- and drug-smuggling.
     • Both vehicles were first seen by Border Patrol Agents traveling
   southbound, then later on the same highway but northbound.
      • There was no indication that either vehicle had recently passed
   through a border checkpoint.
      • Both vehicles were first seen (southbound) with only two occupants,
   both in the front seat, but later (northbound) with a third person visible
   (here, a four-year-old girl).
     • In both instances, there were indications of attempts to hide the
   newly added passenger.
      • Both vehicles were atypical of those that frequented that stretch of
   road.
      • The agents followed both vehicles northbound for several miles,
   before making the stop, to ascertain whether there was reasonable
   susp1c10n.
      • Both drivers slowed down noticeably upon seeing the Border Patrol
   truck.
     • Both drivers, after being seen by the agents, exhibited multiple
   behaviors that the officers, based on experience, saw as suspicious.
      • The agents in both cases had substantial experience and knowledge
   regarding alien-smuggling interdiction.

      Despite the remarkable similarities, this court's panel in Munoz-
Martinez upheld the denial of the motion to suppress and affirmed the convic-
tion, but the panel in the instant case (Dominguez), with scant explanation,
found a Fourth Amendment violation and directed a judgment of acquittal.
The admitted human smuggler in Munoz-Martinez remained to serve his sen-
tence, but the confessed chikl smugglers in Dominguez walked. The en bane
court, regrettably, declines to address that inconsistency.

      Yet, that is the primary function of the en bane court: "to secure or main-
tain uniformity of the court's decisions." Rule 35(a). What is the hapless Bor-
der Patrol agent to do upon seeing a situation similar to that described here?

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                                       No. 14-50794
Does he or she proceed to apprehend a perceived smuggler and rescue a victim,
at the risk of being found to have violated the Constitution? And what about
the conscientious district judge, who, upon reading the sparse opinion in
Dominguez, cannot tell what the partel meant by "the asserted bases for rea-
sonable suspicion [that] can plausibly be explained as normal or innocent con-
duct [] and Jrom ·which [] criminal suspicion under the Fourth Amendment
cannot convincingly be inferred"? And what does the panel mean by "our pre-
cedents"? Apparently that does not include Munoz-Martinez, to which the
panel's attention was painstakingly directed.

       The responsibility to maintain uniformity rests not only with an individ-
ual panel but with the whole court. The panelist in Dominguez was accurate
to say that this court's reasonable-suspicion decisions are "all over the map,''
conferring little guidance to those who must enforce the law or judge the
resulting cases. Despite that inconsistency, this court, by a vote of 6-9, also
recently refused en bane rehearing in United States v. Gonzalez-Garcia,
410 F. App'x 827 (5th Cir. 2011) (per curiam), declining to reconcile decisions
addressing vehicle stops near Midland/Odessa on Interstate 20-including two
opinions issued within days of each other, like ships passing in the night. 1

       Judges decline en bane rehearing for many reasons, most of them salu-
tary. Some judges have a persistent aversion to en bane proceedings. Or a
judge may think the panel reached the proper result, so the court should await
a case with a more questionable outcome; to the same effect, judges in the panel
majority are understandably reluctant to have their opinion vacated and
reheard. And it is demonstrably more difficult to obtain en bane consideration


       1 See, e.g., United States v. Cervantes, 797 F.3d 326 (5th Cir. 2015) (denying suppres-
sion, with a dissent); United States v. Rivera-Gonzalez, 413 F. App'x 736 (5th Cir. Feb. 22,
2011) (denying suppression); United States v. Olivares-Pacheco, 633 F.3d 399 (5th Cir.
Feb. 10, 2011) (granting suppression).
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                                   No. 14-50794
where the losing party (here, the government) does not move for full-court
review.   See Robinson, 791 F.3d at 615 (Smith, J., dissenting).         Further,
because it is not technically binding precedent under Fifth Circuit Rule 47.5,
an unpublished decision may not attract as much attention. See id. Likewise,
where, as here, the panel, for whatever well-intentioned reasons, chooses not
to explore the facts or the law, some judges may decide that the case is not
worth the en bane candle because the opinion does not explicitly mishandle the
relevant issues.

      Those excuses, however, do not provide needed answers for the agents in
the field, the lawyers who prosecute and defend, or the judges in the courtroom.
I respectfully dissent.




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