United States v. Lebeau, 15-3592
| Decision Date | 14 August 2017 |
| Docket Number | No. 15-3653,No. 15-3592,15-3592 |
| Citation | 867 F.3d 960 |
| Parties | UNITED STATES of America, Plaintiff–Appellee v. Gerald Wayne LEBEAU, Defendant–Appellant United States of America, Plaintiff–Appellee v. Neil Thomas LeBeau, Defendant–Appellant |
| Court | U.S. Court of Appeals — Eighth Circuit |
Counsel who filed a brief and presented argument on behalf of the appellant, Gerald LeBeau, was George E. Grassby, of Rapid City, SD.
Counsel who filed a brief and presented argument on behalf of the appellant, Neil LeBeau, was John Fitzgerald, of Rapid City, SD.
Counsel who presented argument on behalf of the appellee was Benjamin Patterson, AUSA, of Rapid City, SD. Also appearing on the brief for appellee was Ted L. McBride, AUSA, of Rapid City, SC.
Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
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.
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 judge1 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 judge3 recommended that the motions to suppress be denied, and the district court4 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
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.
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...
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