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United States v. LeBeau

United States Court of Appeals, Eighth Circuit

August 14, 2017

United States of America Plaintiff- Appellee
v.
Gerald Wayne LeBeau Defendant-Appellant United States of America Plaintiff- Appellee
v.
Neil Thomas LeBeau Defendant-Appellant

          Submitted: February 9, 2017

         Appeals from United States District Court for the District of South Dakota - Rapid City

          Before LOKEN, COLLOTON, and KELLY, Circuit Judges.

          KELLY, CIRCUIT JUDGE

         Following trial, a jury convicted Gerald Wayne LeBeau (Gerald) of possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and convicted Gerald and his son Neil Thomas LeBeau (Neil) of conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, and conspiracy to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D), and 846. Gerald and Neil each appeal on various grounds. We affirm.

         I. Background

         On January 10, 2014, Gerald was staying at Cadillac Jack's Gaming Resort, a hotel and casino in Deadwood, South Dakota. During Gerald's stay, federal agents searched his hotel room and car. The agents discovered cocaine in the car, and arrested Gerald. According to the government, Gerald and Neil had been running an operation in which they and their associates purchased cocaine and marijuana to distribute at the Pine Ridge Indian Reservation. The government contends Gerald continued to direct the operation after his arrest by using jail telephones to speak with Neil and other associates in coded language. The jail telephone system records all calls placed by inmates.

         Gerald was indicted for possession with intent to distribute cocaine, and both Neil and Gerald were indicted for conspiracy to distribute cocaine and conspiracy to distribute marijuana. A superseding indictment additionally charged Gerald with attempted witness tampering, but the count was later dismissed. Gerald was appointed counsel, and filed a motion to suppress evidence seized from the searches of his hotel room and car. Before a hearing was held on that motion, Gerald's appointed attorney (the fourth to represent Gerald in relation to the case) moved to withdraw without substitution based on Gerald's expressed desire to represent himself.

         Before ruling on the motion to withdraw, the magistrate judge[1] held an evidentiary hearing on the suppression motion. At the beginning of the hearing, and several times throughout the hearing, Gerald told the court he did not want his attorney to represent him. The magistrate judge advised Gerald that the suppression hearing would proceed with counsel, followed by a separate ex parte hearing on Gerald's request to represent himself. At the ex parte hearing, the magistrate judge informed Gerald that he had a right to represent himself, but advised Gerald that doing so would be an unwise decision. Gerald ultimately decided not to represent himself. The magistrate judge allowed Gerald's attorney to withdraw, and explained to Gerald that his new attorney would be permitted to introduce additional evidence related to the suppression motion. After the hearing, current counsel was appointed to Gerald's case. Before trial, Gerald moved to remove his current counsel as well, but during an ex parte hearing on the motion, informed the court that he wanted to withdraw his request and have his current attorney continue to represent him.

         Through his new counsel, Gerald filed additional motions to suppress, including, inter alia, a second motion to suppress evidence seized from the hotel room and car and a motion to suppress the recordings of his telephone calls.[2] Neil moved to join some of Gerald's motions, and also filed his own pretrial motions, including, inter alia, a motion to exclude a prior conviction and a motion to suppress the recordings of the telephone calls. After an additional evidentiary hearing, the magistrate judge[3] recommended that the motions to suppress be denied, and the district court[4] adopted the recommendation. Gerald also filed a motion to dismiss the superseding indictment, on the grounds that the government failed to preserve video surveillance recordings from Cadillac Jack's, which Gerald asserted contained exculpatory evidence. The district court denied the motion. Gerald and Neil also filed motions to sever their trials, which the district court denied. Finally, the government moved to quash several of Gerald's subpoenas directed to witnesses who purportedly had information about the investigation the agents conducted at Cadillac Jack's. The district court granted those motions at the first pretrial conference.

         The case proceeded to trial. However, Gerald and Neil disrupted the proceedings, and the district court declared a mistrial. A new trial was scheduled, and the district court held a second pretrial conference. Gerald interrupted the conference to inform the court he had filed a lawsuit against the judge and the prosecutor, and to request their recusal. The court declined, and reminded Gerald that he was required to remain silent when not on the witness stand, because his attorney was "the person that speaks for you here in court." Gerald replied, "I can represent myself." The court did not respond, and resumed discussion of the motion in limine before it. During the second pretrial conference, the district court also reaffirmed the rulings issued during the first pretrial conference, including its grant of the government's motions to quash.

         At the second trial, the government introduced testimony that agents found cocaine in Gerald's car, but did not introduce testimony about or evidence obtained from the hotel room. Several of Gerald and Neil's former associates testified about their roles in the drug operation. Other witnesses testified that they purchased drugs from Gerald or Neil. Additionally, the government introduced ninety-one recordings of Gerald's calls from jail telephones and their corresponding transcripts. Witnesses identified the speakers and content of the calls, and explained the coded language used in the calls. Ultimately, both defendants were found guilty. Gerald was sentenced to 324 months' imprisonment for possession with intent to distribute cocaine and conspiracy to distribute cocaine and 120 months for conspiracy to distribute marijuana, to run concurrently, and was assessed a $3, 000 fine. Neil was sentenced to 120 months on both counts, to run concurrently. Each appeals.[5]

         II. Discussion

         A. Gerald's Appeal

         Gerald appeals his convictions on the grounds that the district court erred by: (1) denying his motions to suppress evidence obtained during the searches of his hotel room and car; (2) not allowing him to represent himself; (3) not allowing him to present the full scope of his defense; (4) denying his motion to dismiss the superseding indictment based on the government's failure to preserve evidence; and (5) denying his motion to suppress the recordings of the telephone calls he made from jail. He also appeals his sentence, arguing that the district court erred in applying sentencing enhancements that were not proven beyond a reasonable doubt.

         1. Denial of motions to suppress evidence seized from searches of hotel room and car

         First, Gerald challenges the denial of his two motions to suppress evidence obtained during the searches of his hotel room and car. "We review the denial of a motion to suppress de novo but the underlying factual determinations for clear error, giving due weight to inferences drawn by law enforcement officials." United States v. Corrales-Portillo, 779 F.3d 823, 829 (8th Cir. 2015) (quoting United States v. Clutter, 674 F.3d 980, 982 (8th Cir. 2012)). "We affirm . . . unless the district court's decision is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a mistake was made." Id. (alteration in original) (quoting United States v. Wallace, 713 F.3d 422, 426 (8th Cir. 2013)).

         The magistrate judge found, and the district court adopted as supplemented, the following facts relating to Gerald's motions to suppress. On January 10, 2014, Special Agent Jeff Youngblood of the Federal Bureau of Investigation (FBI) executed a search warrant for a hotel room at Cadillac Jack's that a federal fugitive, Lloyd Nickel, had been staying in prior to his apprehension. During the execution of the warrant, the hotel manager, Tim Atyeo, informed Youngblood that the woman who had accompanied Nickel was still in the hotel and had been seen with Gerald. Hotel staff believed her name was Jessica Fields. Youngblood contacted Special Agent Dan Cooper, who informed Youngblood that Gerald had a criminal history involving narcotics. Cooper and two other agents, Lyle Tolsma and Shawn Sheridan, went to Cadillac Jack's to assist Youngblood. After reviewing hotel surveillance videos, the agents believed the woman had gone into Gerald's hotel room.

         The agents requested hotel staff to telephone Gerald's room and ask him to step outside to speak with the manager, while Atyeo stood outside Gerald's door. When Gerald opened the door, the agents asked him to step outside, handcuffed him, and patted him down. Tolsma removed keys and a wallet from Gerald's pants pocket. The agents also detained Gerald's brother, Marlin LeBeau, who had been walking down the hallway when the agents approached the room. Tolsma used a digital recording device to document the agents' conversations with Gerald and Marlin, but the audio is of poor quality. According to the agents, they informed Gerald they needed to speak to the woman in the room. They testified that Gerald called out for "Katrina" and indicated that the officers could go ahead. Tolsma knocked on the door, which was slightly ajar, and the woman responded, "Hello?" Tolsma pushed the door open, and he and Sheridan entered the room. Tolsma asked the woman for identification, and discovered that her name was actually Tyra Smith. While Tolsma spoke with Smith, Sheridan conducted a brief "sweep" to see if anyone else was in the hotel room, and observed a bag of white powder in plain view on a counter by the sink.

         Smith was taken to another room to be interviewed. Then, the agents brought Gerald and Marlin into Gerald's hotel room and moved Gerald's handcuffs to the front of his body. Tolsma recorded their conversation with the digital recorder. Tolsma told Gerald that he was not under arrest, that he did not have to speak with them, and that they were there to identify the woman in the room. Gerald explained how he met the woman and why she was in his room. Then, Tolsma asked Gerald for written consent to search his hotel room. According to Tolsma and Sheridan, Gerald agreed and signed a consent form. The digital recorder stopped working during this exchange because the battery popped out. When Tolsma discovered the malfunction, he replaced the battery and asked Gerald to verbally confirm on the recording that he had consented to the search, which Gerald did. Approximately forty minutes later, while the agents were searching the room, Tolsma asked Gerald for consent to search his car, and Gerald agreed. His verbal agreement to the search of the car was audio- recorded, but he did not sign a new consent form. Syringes and a small amount of cocaine were discovered in the hotel room, and four ounces of cocaine were discovered in the car. After finding the cocaine in the car, Cooper placed Gerald under arrest.

         For clarity, we will refer to the agents' initial entry into the hotel room, including Tolsma's sweep of the hotel room, as the "initial entry, " and to the full search of the room, purportedly conducted pursuant to Gerald's written consent, as the "search." In his motions to suppress, Gerald argued that the agents' initial entry into the hotel room, and subsequent searches of the room and car, were unconstitutional. The district court adopted the magistrate judge's recommendation to deny Gerald's motions to suppress, finding that Gerald voluntarily consented to the searches of his hotel room and car, and that, even assuming the initial entry was unconstitutional, Gerald's consent to the searches of the hotel room and car purged the taint of the violation.

         As we understand the basis of Gerald's appeal regarding the motions to suppress, it can be distilled into three distinct arguments. First, he contends that the district court clearly erred in finding that he voluntarily consented to the searches of his hotel room and car. Second, he argues that the agents' initial entry into the hotel room was unconstitutional, and that evidence obtained from the searches of the hotel room and car should have been suppressed as fruit of the poisonous tree. Third, he argues that Tolsma illegally seized his wallet and keys after patting him down outside the hotel room.

          a. Consent to searches of hotel room and car

         Gerald argues the district court clearly erred when it found that he voluntarily consented to the searches of the hotel room and car.[6] "The government bears the burden of proving voluntary consent to a search by a preponderance of the evidence and we review a district court's finding of voluntary consent under a clear error standard." United States v. Willie, 462 F.3d 892, 896 (8th Cir. 2006) (internal citations omitted).

         First, Gerald challenges the district court's finding that he consented to the searches of the hotel room and car at all. Gerald points out that during the suppression hearing, his handwriting expert, Wendy Carlson, opined that the signature on the consent form for the search of the hotel room was not Gerald's, and that it was highly probable Tolsma had forged it. Gerald contends that the district court improperly rejected Carlson's opinion because she, unlike the government's handwriting expert, was not an FBI employee. He also contends that there is no evidence he consented to the search of the car.

         In finding that Gerald signed the consent form, the district court noted that the government's handwriting expert called Carlson's methodology into question, that the government impeached Carlson's qualifications, that Tolsma and Sheridan both testified that Gerald signed the form, and that Gerald verbally confirmed on the audio recording that he signed the form. The district court further noted that although Gerald did not sign a separate consent form for the search of the car, Tolsma and Sheridan testified that Gerald verbally consented to the search of the car, Gerald's verbal consent to the search of the car was captured on the audio recording, and Gerald subsequently stated in a recorded telephone call from jail that he consented to the search of the car.

         Under these circumstances, we cannot say the district court committed clear error in finding Gerald consented to the searches of the hotel room and car. The court's written order explains that it discounted Carlson's testimony not because she was not an FBI employee, but because her testimony was inconsistent with the other evidence presented, including the testimony of Tolsma and Sheridan. It was not clear error for the court to credit this evidence over Carlson's expert opinion. See Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985) ("[W]hen a trial judge's finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error."). Additionally, Gerald's own contemporaneous and subsequent statements provide evidentiary support for the court's conclusion that he consented to the searches. Accordingly, the court did not err in finding Gerald consented to the searches of his hotel room and car.

         Next, Gerald argues that even if he did consent to the searches, his consent was not voluntary because he was handcuffed and in custody at the time of consent and had not been given Miranda warnings. "The question of voluntariness requires a broad factual inquiry; there is no bright-line rule to determine when an 'essentially free and unconstrained choice, ' becomes one that is 'the result of duress or coercion.'" Willie, 462 F.3d at 896 (internal citations omitted) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225, 248 (1973)). Rather, we consider whether consent is voluntary based on the totality of the circumstances, "including a defendant's age, intelligence, and education; whether he cooperates with police; his knowledge of his right to refuse consent; and his familiarity with arrests and the legal system." United States v. Bearden, 780 F.3d 887, 895 (8th Cir. 2015). "Also relevant is the environment in which consent was given and whether the police threatened, intimidated, punished, or falsely promised something to the defendant; whether the defendant was in custody or under arrest when consent was given and, if so, how long he had been detained; and whether consent occurred in a public or secluded area." Id.

         We conclude the district court did not err in finding that Gerald's consent to the searches was voluntary. Although the facts that Gerald was handcuffed and was not given Miranda warnings weigh in Gerald's favor, other facts support the court's finding of voluntariness: The agents did not threaten or intimidate Gerald, the agents told Gerald that he was not under arrest and that they wanted to ask him questions about the woman in his room, the agents informed Gerald that he did not have to speak with them, Gerald was cooperative with the agents and engaged them in conversation, and Gerald had prior experience with the legal system. Based on the totality of the circumstances, we cannot say the district court clearly erred in finding Gerald's consent was voluntary. See id. (concluding that the district court did not err in finding the defendant voluntarily consented to a search even though he was handcuffed in a secluded area and had not yet been read Miranda warnings, because other circumstances supported the court's finding).

         b. Fruit of the poisonous tree

         Gerald next argues that the district court should have granted his motions to suppress on the grounds that the agents' initial entry into the hotel room was unconstitutional. He contends that he did not voluntarily consent, explicitly or implicitly, to the agents entering the hotel room, and that even if he did, Tolsma's sweep of the hotel room exceeded the scope of consent. In Gerald's view, the subsequent searches of the hotel room and car were the fruit of the purportedly illegal initial ...


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