United States v. McAdams

• Decision Date: 15 January 2019
• Docket Number: 1:18-cr-00149-LJO
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KENNETH MCADAMS, Defendant-Appellant.
• Court: U.S. District Court — Eastern District of California

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KENNETH MCADAMS, Defendant-Appellant.

1:18-cr-00149-LJO

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

January 15, 2019

ORDER ON APPEAL OF CONVICTION BY MAGISTRATE JUDGE

(ECF No. 75)

I. INTRODUCTION

After a bench trial before a United States Magistrate Judge on December 6, 2017, Defendant-Appellant Kenneth McAdams ("McAdams" or "Defendant") was found guilty of three counts for violating: 1) 36 C.F.R. § 4.23(a)(1), for operating a vehicle while under the influence of alcohol to a degree that renders the operator incapable of safe operation; 2) 36 C.F.R. § 4.23(a)(2), for operating a vehicle with a blood alcohol concentration of .08 grams or more per 210 liters of breath; and 3) 36 C.F.R. § 4.12 for failure to comply with the directions of a traffic control device in Yosemite National Park. ECF No. 51. On June 19, 2018, McAdams was sentenced to 12 months unsupervised probation, a fine of $1,480, and a First Time DUI Offender Program through the Nevada Department of Motor Vehicles. ECF Nos. 54-55.

McAdams appeals his convictions on three grounds, claiming the Magistrate Judge made a number of evidentiary errors in reaching the verdict. ECF No. 56; ECF No. 75 at 6. First, McAdams claims the Magistrate Judge erroneously permitted Ranger Montoya to provide expert testimony on Horizontal Gaze Nystagmus ("HGN" or "nystagmus") without qualifying as an expert under Federal Rule of Evidence 702 and without being designated as an expert in pretrial discovery. Id. Second, McAdams argues that the Magistrate Judge inappropriately took judicial notice of the purported causal link between alcohol consumption and nystagmus. Id. Third, McAdams argues that the Magistrate Judge admitted into evidence the results of two improperly administered breath tests. Given these errors, McAdams requests that the Court vacate his conviction and enter a judgment of acquittal. Id. McAdams filed an opening brief on October 22, 2018. Id. The United States filed its answering brief on November 11, 2018. ECF No. 76. Appellant filed a reply on November 26, 2018. ECF No. 77. For the reasons that follow, the Court affirms McAdams' convictions.

II. BACKGROUND

The trial occurred before the Magistrate Judge on December 6, 2017. ECF No. 33. At trial the government called four witnesses: Matt Thomas, Ranger Jesse McGahey, Ranger Jason Montoya, and Criminalist Jessica Winn. The Defendant called one witness, Criminalist Stanley Dorrance. ECF No. 51.¹

Matt Thomas, a dining room and food and beverage manager at Wawona Hotel at the relevant time, testified at trial that he saw a party of three sitting on the veranda of the hotel drinking their own alcohol on July 23, 2016 at around 2:30 pm. As they were leaving the veranda walking towards the parking lot he noticed that the group was walking shoulder to shoulder and stumbling while walking and supporting each other. He followed them to make sure they did not drive and approached McAdams and asked if he was okay to drive, to which McAdams responded, "don't worry about us." Thomas observed that McAdams' eyes were drowsy and then watched McAdams get into the driver's seat of a vehicle as one of the two females also gotinto driver's seat with him. Thomas further observed McAdams back up from the parking space and almost sideswipe the car parked next to him and honk at the parked car before heading north on Highway 41. Based on his observations, Thomas believed that McAdams was intoxicated, was concerned about him driving, and testified that if he was bartending he would have been concerned about continuing to serve him.² Thomas took down the make and model of car and asked one of the front desk clerks to call the Rangers to notify them. He provided a written statement to the Rangers later that day when they came to the hotel.

At around 4:00 pm Saturday July 23, 2016, McAdams was driving his vehicle with two female passengers eastbound on Southside Drive between Sentinel Creek and the "Four Mile Trail" in Yosemite Valley, Yosemite National Park. There were two marked eastbound lanes - at that time, the right lane was a bus only lane, open to buses, administrative traffic and emergency traffic, and the left lane was for visitor traffic. There were a number of signs in place to designate the right lane as the bus lane. Rangers Jason Montoya and Jesse McGahey were both on bicycle patrol at the time and traveling westbound against traffic in the right lane, primarily to ensure compliance with the closure of that lane to passenger cars. McGahey was an estimated ¼ to ½ mile ahead, further west, of Montoya. At around 4:00 pm on that day, the left lane for visitor traffic was moving at a stop and go pace and the right bus lane was free and clear of traffic and could move at 25-30 mph.

Ranger McGahey first observed McAdams as he was driving eastbound on Southside Drive while McGahey was facing west and maintaining the bus lane restriction. McAdams was traveling in the bus lane and McGahey indicated for the vehicle to move into the visitor lane and McAdams complied without incident. McGahey also testified that passenger cars are often in the bus lane in Yosemite and Park Rangers have a soft policy of issuing a warning for the initialviolation. McGahey saw McAdams' vehicle three to five minutes later after hearing on the radio that Ranger Montoya had performed a stop of a vehicle with the same vehicle description and he responded to Ranger Montoya's location at the scene of the DUI investigation. As McGahey approached from the passenger side of McAdams' stopped vehicle, he could see several empty beer cans in plain view in the front passenger seat. There was also an empty box of the same type of beer in the back seat. McGahey's original report said that McAdams had red eyes, was slurring his words, and was speaking very slowly despite the body camera footage showing McAdams speaking quickly.

Ranger Montoya testified that approximately 4:05 p.m. he observed a blue Mercedes in the bus lane of traffic approximately 15-20 car lengths away from him and coming towards his location. He then observed the vehicle move into the left visitor lane. When the vehicle got to where Ranger Montoya was he indicated for it to pull over. Ranger Montoya testified that he did not stop every such violator, but given what he considered to be the likelihood that this driver had already passed Ranger McGahey and been made aware of the requirement to stay in the left lane, a stop and investigation was appropriate. After stopping the vehicle, Ranger Montoya contacted the driver and got his identification and ran his plates through Yosemite dispatch. While running the check, Montoya was advised by law enforcement dispatch radio that Defendant and his car fit the description of someone reported to have been seen in a seemingly intoxicated state entering the vehicle and driving away from Wawona Hotel. During his stop of McAdams, Ranger Montoya observed a case of Modelo beer in the back seat, the smell of alcohol from the passenger compartment of the vehicle, that McAdams had sluggish, watery eyes, slurred speech, and gave inconsistent answers to his questions. After his contact with dispatch, Ranger Montoya asked McAdams to step out of the vehicle and conducted a DUI investigation, including three field sobriety tests - the HGN test, Walk and Turn test, and OneLeg Stand test. His observations led Ranger Montoya to the conclusion that McAdams was intoxicated. Ranger Montoya then requested McAdams take a preliminary breath test which confirmed the presence of alcohol. McAdams was arrested and transported to Yosemite Holding Facility where he was given a Drager Alcotest 7510 evidentiary breath test.³ The initial attempt at the breath test did not provide a result because Defendant did not give enough breath volume. The first evidentiary breath test gave a reading of .13% blood alcohol content ("BAC") and the second, which was preceded by a two-minute waiting period under protocol, was .14% BAC.

Two experts testified at trial. Jessica Winn was qualified as the government's expert in the analysis of blood and breath samples for alcohol content. Stanley Dorrance testified for the defense and was qualified as an expert in the areas of forensic alcohol analysis, proper administration of chemical tests, and the administration and interpretation of field sobriety tests. The Court discusses their testimony as necessary to the relevant evidentiary objections below.

As a result of the events of July 23, 2016, the government filed a criminal complaint against McAdams charging three violations: 1) 36 C.F.R. § 4.23(a)(1), for operating a vehicle while under the influence of alcohol to a degree that renders the operator incapable of safe operation (count 1); 2) 36 C.F.R. § 4.23(a)(2), for operating a vehicle with a blood alcohol concentration of .08 grams or more per 210 liters of breath (count 2); and 3) 36 C.F.R. § 4.12 for failure to comply with the directions of a traffic control device, i.e. the bus lane restriction (count 3). ECF No. 2. McAdams entered a not guilty plea to all three counts on August 30, 2016. ECF No. 3. The trial court held an evidentiary hearing on January 31, 2017 on Defendant's motion to suppress which claimed that Ranger Montoya had no constitutionally valid basis for stopping Defendant's vehicle and therefore that all evidence taken in the course of and as a result of the stop must be suppressed. ECF No. 20. In a written decision on April 26, 2017, Defendant'smotion to suppress was denied. Id. After the December 6, 2017 trial, the Magistrate Judge issued a written Statement of Decision on April 16, 2018 finding McAdams guilty on all three counts. ECF No. 51. Judgment was entered on June 26, 2018 and McAdams filed a timely notice of appeal. ECF Nos. 55, 61. McAdams' sentence of 12 months unsupervised probation, a $1,480 fine, and a DUI offender program has been stayed until ...