United States v. Shrader , 665 F. App'x 642 ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 26, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-5073
(D.C. No. 4:14-CR-00096-CVE-1)
GREGORY LYNN SHRADER, (N.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before TYMKOVICH, Chief Judge, BACHARACH and MORITZ, Circuit
Judges.
_________________________________
Mr. Gregory Shrader and Mr. Brad Stewart were business partners
whose relationship soured. When it did, the two men clashed and Mr.
Stewart accused Mr. Shrader of stalking and harassment. While the two
men wrangled, a package containing an improvised explosive device was
mailed to an Arizona sheriff. Though the package showed a return address
*
Oral argument would not be helpful in this appeal. As a result, we
are deciding the appeal based on the briefs. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
for Mr. Stewart, law enforcement suspected that the sender had been Mr.
Shrader. He was ultimately prosecuted and convicted in Arizona federal
court on charges growing out of the mailing of an explosive.
During the investigation into these charges, authorities searched Mr.
Shrader’s house in Oklahoma pursuant to a search warrant. In the attic
space, covered by insulation, were three firearms and one round of
ammunition wrapped in plastic. This discovery led to charges in Oklahoma
federal court of possession of firearms and ammunition by a felon. See
18 U.S.C. § 922(g).
Mr. Shrader’s counsel moved to suppress the evidence seized from
the house during the execution of the warrant. The district court denied the
motion and ultimately convicted Mr. Shrader. Mr. Shrader then sought
leave to file a second suppression motion pro se, but the district court
concluded that the motion had been improperly filed.
In this pro se appeal, Mr. Shrader argues that (1) the district court
should have granted his suppression motions, (2) the indictment should
have been dismissed based on intrusion into the attorney-client
relationship, (3) the prosecution should not have been allowed to pursue a
theory of constructive possession, and (4) the district court violated the
Speedy Trial Act. We reject these arguments and affirm.
2
I. The district court properly denied Mr. Shrader’s suppression
motions.
Mr. Shrader argues that the district court should have granted his
suppression motions because (1) the affidavit supporting the search
warrant application had misled the magistrate judge, (2) an insufficient
nexus existed between the house, the letters, and the explosive device, and
(3) the warrant did not specify firearms as items to be seized. 1
A. Standard of Review
In reviewing the denial of Mr. Shrader’s motion to suppress, “we
accept the factual findings unless they are clearly erroneous . . . and
review questions of law de novo.” United States v. Gonzales, 399 F.3d
1225, 1228 (10th Cir. 2005). 2
B. The affiant did not mislead the magistrate judge.
Mr. Shrader argues that the district court should have granted the
first motion to suppress because the magistrate judge had been misled by
1
The district court also found that (1) the affidavit supporting the
warrant application had not been based on stale information and (2) the
seizure of the firearms and ammunition fell within the plain-view
exception to the warrant requirement. These findings are not challenged in
Mr. Shrader’s opening brief. Mr. Shrader did discuss the plain-view
exception in his reply brief, but this discussion came too late. See United
States v. Watson, 766 F.3d 1219, 1230 n.8 (10th Cir.), cert. denied, ___
U.S. ___, 135 S. Ct. 735 (2014).
2
Because Mr. Shrader appears pro se in this appeal, we liberally
construe his appellate filings. See Celli v. Shoell, 40 F.3d 324, 327
(10th Cir. 1994).
3
the law enforcement officer’s affidavit. See United States v. Leon,
468 U.S. 897, 923 (1984) (“Suppression . . . remains an appropriate remedy
if the magistrate or judge in issuing a warrant was misled by information in
an affidavit that the affiant knew was false or would have known was false
except for his reckless disregard of the truth.”). We reject this argument.
The affidavit said that
 the explosive had been found in an Arizona postal box on April
11, 2013,
 Mr. Shrader had been photographed that day in a vehicle only
1.2 miles away, and
 Mr. Shrader had also been photographed much earlier that day
in this vehicle at a gas station in Amarillo, Texas, and again
some twelve hours later at the south entrance to the Grand
Canyon, roughly 65 miles from the drop box where the
explosive was found.
Mr. Shrader insisted that he had an alibi for April 11 and that the vehicle
he had been in had not matched the vehicle in the photographs. 3 The affiant
later acknowledged that he had been wrong about the date that the
photographs had been taken, stating that the date had actually been
April 10, one day before the explosive was found.
Mr. Shrader argues that
 the affiant should not have been allowed to change the date that
the vehicle had been photographed,
3
Mr. Shrader was in a vehicle owned by Ms. Rachelle Raimer.
4
 his vehicle had mud flaps and the vehicle in the photographs
taken near the drop box did not have mud flaps,
 the vehicle in the photographs was silver and his vehicle was
brownish, and
 the affiant misrepresented conclusions by other investigators.
We reject these arguments.
The affiant did not correct any dates in the photographs. Instead, he
stated that he had meant to use the date of April 10, instead of April 11,
when addressing Mr. Shrader’s whereabouts and the discovery of the
explosive. The affiant did not alter anything in the photographs, and Mr.
Shrader’s attorney acknowledged that he had no evidence indicating
alteration of the date stamp on the photographs. Thus, we reject Mr.
Shrader’s contention relating to the date change.
Mr. Shrader also questions the affiant’s reliance on the photographs
of the vehicle. According to Mr. Shrader, his vehicle was brownish and had
mud flaps, while the affiant claimed that (1) the vehicle in all of the
photographs was silver and (2) in the photographs taken near the drop box,
the vehicle appeared to have no mud flaps. But these discrepancies did not
taint the ruling.
The affiant testified in the suppression hearing that the mud flaps
would not have been visible in the photographs taken near the drop box
because of the speed and angle of the vehicle. And in district court, Mr.
Shrader did not argue that his vehicle was a different color than the vehicle
5
shown in the photographs. Indeed, in the record on appeal, there is only
one color photograph of Mr. Shrader’s vehicle. R., Vol. I at 104 (attached).
In that photograph, 4 the shading makes virtually everything appear green,
so little could be said about the actual color of Mr. Shrader’s vehicle. Id.
As a result, the alleged discrepancies did not taint the affiant’s reliance on
the photographs. 5
Finally, Mr. Shrader insists that the affiant misrepresented
conclusions of other investigators. The affiant noted that other law
enforcement officers were looking into allegations that Mr. Shrader had
harassed Mr. Stewart. According to Mr. Shrader, the affiant later
acknowledged that the investigation had come up empty. That is not
correct. The affiant simply noted that the harassment allegations were
being handled by others.
C. A sufficient nexus existed between Mr. Shrader’s Oklahoma
house, letters described in the affidavit, and the explosive.
Mr. Shrader claims that there was no nexus between his house and
(1) letters described in the affidavit or (2) discovery of the explosive in
Arizona. We disagree.
4
The affiant did not rely on this photograph.
5
The affiant admitted that the vehicle’s plate number could not be
seen in the photographs taken near the drop box. But the plate number is
visible in the Amarillo and Grand Canyon photographs, and this plate
number matched the plate for the vehicle that Mr. Shrader had been in.
6
Probable cause existed only if there had been a nexus between the
suspected crime and the place to be searched. United States v. Corral-
Corral, 899 F.2d 927, 937 (10th Cir. 1990). Thus, the affiant had to
provide enough facts to lead a prudent person to believe that the search
would reveal evidence of a crime. United States v. Danhauer, 229 F.3d
1002, 1006 (10th Cir. 2000). In evaluating the facts in the affidavit, the
magistrate judge had to make a “practical, common-sense decision based
on the totality of the circumstances as set forth in the affidavit.” United
States v. Rowland, 145 F.3d 1194, 1204 (10th Cir. 1998) (quoting Illinois
v. Gates, 462 U.S. 213, 238 (1983)). We afford great deference to that
determination unless the affidavit failed to provide a substantial basis for
the magistrate judge’s conclusion. Id.
The affidavit here provided a substantial basis to conclude that
evidence of criminal activity would be found at Mr. Shrader’s house. The
affiant provided detailed descriptions of five letters or packages that had
been mailed to Mr. Stewart or third parties. Four appeared to frame or
discredit Mr. Stewart, and one contained “a brown lump of organic
material with a powder substance.” R., Vol. I at 55. Three of the letters
bore postmarks for the postal center nearest Mr. Shrader’s house.
The affiant added that after bringing these letters to the court’s
attention in a civil suit between Mr. Stewart and Mr. Shrader, Mr. Stewart
7
continued to receive harassing mail but the postmarks changed to show
processing in a different state.
In addition, the affiant noted that a forensic examiner had compared
the abusive letters to documents that Mr. Shrader was known to have
written. Based on this comparison, the forensic examiner
 found similarities in capitalization, punctuation, spelling
errors, word choices, and formatting and
 concluded that Mr. Shrader had probably written one letter
identifying Mr. Stewart as a heroin trafficker.
The affiant added that (1) the letters had been prepared on a
computer and printed and (2) prior to their dispute, Mr. Stewart had visited
Mr. Shrader’s home and had seen a computer and printer.
Together, the factual statements in the affidavit created a substantial
basis to link the letters to Mr. Shrader’s house.
The affiant also set forth sufficient facts linking Mr. Shrader’s house
to the explosive. These facts included descriptions of the photographs
showing that on April 10, Mr. Shrader had gone through Amarillo, Texas to
the Grand Canyon’s south entrance.
Finally, the affiant pointed out that two months earlier, Mr. Shrader
had shopped at a crafts store in Oklahoma that stocked some of the
components found in the package containing the explosive.
In their totality, these facts created probable cause for the search by
linking Mr. Shrader’s house to the abusive letters and the explosive.
8
D. Mr. Shrader waived his argument that suppression was
necessary because firearms had not been listed as items to
be seized.
Mr. Shrader “believe[s]” that (1) Mr. Stewart told the affiant that
there were guns in Mr. Shrader’s house and (2) Mr. Stewart placed them
there or had them placed there. Appellant’s Opening Br. at 8-9. According
to Mr. Shrader, the affiant omitted from his affidavit any mention of
firearms out of fear that Mr. Stewart would be called as a witness at a
suppression hearing and testify that he had planted the firearms in the
house. Mr. Shrader contends that the omission of firearms in the affidavit
rendered the warrant lacking in particularity.
Mr. Shrader made this argument in a pro se motion to suppress filed
after the trial. The district court denied the motion as improperly filed
because Mr. Shrader had counsel at the time and the court had earlier
denied hybrid representation.
We agree that Mr. Shrader’s particularity argument was not properly
presented to the district court. See United States v. Hale, 762 F.3d 1214,
1219-20 (10th Cir. 2014) (concluding that an argument made in a pro se
motion “was not properly presented to the district court” because the
district court had denied permission to engage in hybrid representation),
cert. denied, ___ U.S. ___, 135 S. Ct. 1464 (2015). Moreover, Mr. Shrader
raises no appellate challenge to the denial of hybrid representation.
9
Because Mr. Shrader failed to properly present the argument in
district court, the argument is considered waived in the absence of good
cause. Fed. R. Crim. P. 12(c)(3); see United States v. Burke, 633 F.3d 984,
988, 991 (10th Cir. 2011) (holding that plain-error review under Fed. R.
Crim. P. 52 does not apply to pretrial suppression motions and that
“motions to suppress evidence, including specific arguments to suppress
evidence, raised for the first time on appeal . . . are waived absent a
showing of good cause [under Rule 12] for why they were not raised
below”). 6 The “good cause” exception is “narrow” and rarely satisfied.
Burke, 663 F.3d at 988 (internal quotation marks omitted).
Mr. Shrader failed to show good cause because he has not offered
any reason for his failure to properly present the particularity argument in
district court. Though Mr. Shrader’s attorney declined to present the
argument, that omission does not constitute good cause. United States v.
Augustine, 742 F.3d 1258, 1266 (10th Cir. 2014). As a result, this
argument has been waived.
6
In Burke, we concluded that such arguments are “waived.” 633 F.3d
at 991. Since our decision in Burke, Rule 12(e) (which discussed “waiver”)
was removed and replaced by section (c)(3) (which does not use the word
“waiver”). This change served only to clarify that intent is not required
under section (c)(3). Fed. R. Crim. P. 12, advisory committee note-2014
amendment.
10
II. There was no basis to dismiss the indictment based on intrusion
into the attorney-client relationship.
Mr. Shrader sought to dismiss the indictment based on allegations
that his jailers had seized or interrupted his legal mail during his pretrial
confinement in the Tulsa, Oklahoma county jail. The district court orally
denied the motion to dismiss, finding that (1) the jail was operated by the
Tulsa County Sheriff’s Office and (2) Mr. Shrader’s grievance did not
implicate the federal district court, the United States Attorney’s Office, or
the United States Marshals Service.
We review this ruling only for an abuse of discretion. See United
States v. Alcaraz–Arellano, 441 F.3d 1252, 1265 (10th Cir. 2006) (“We
review for abuse of discretion the district court’s grant or denial of a
motion to dismiss an indictment.”). No error took place, for Mr. Shrader
offers only conclusory allegations that the Marshals Service was involved
in seizing the mail. Accordingly, we conclude that the district court did not
abuse its discretion.
III. The district court did not err in allowing the prosecution to
pursue a theory of constructive possession.
Mr. Shrader argues that the prosecution could not rely on a
constructive possession theory because it had not been charged in the
indictment, had been improperly addressed in closing arguments, and had
been unsupported by the evidence.
11
Mr. Shrader’s first two arguments incorrectly assume that
constructive possession and actual possession are separate offenses. The
statute of conviction, 18 U.S.C. § 922(g)(1), criminalizes “possess[ion]” of
a firearm or ammunition by a convicted felon. “It is well settled the
required ‘possession’ for purposes of § 922(g) includes both actual and
constructive possession.” United States v. Taylor, 113 F.3d 1136, 1144
(10th Cir. 1997). Accordingly, we reject Mr. Shrader’s first two arguments.
Mr. Shrader also alleges that the constructive possession theory was
unsupported by the evidence. In this vein, Mr. Shrader argues that the
prosecution failed to prove that he had known that the guns and
ammunition were in his house. Although knowledge is an element of a
§ 922(g)(1) offense, the fact-finder could reasonably infer knowledge from
Mr. Shrader’s exclusive possession of the house where the firearms or
ammunition were later discovered. See United States v. Little, ___ F.3d ___,
No. 15-2019, 2016 WL 3902581, at *4 (10th Cir. July 19, 2016) (stating
that dominion, control, and knowledge can be inferred from exclusive
possession, as can intent to exercise command over the objects).
The prosecution presented evidence that Mr. Shrader had exclusive
possession of the Oklahoma house. This evidence consisted of (1)
testimony that officers had recovered Mr. Shrader’s bank statements, a
water bill, and other mail in his house and car, (2) the absence of anything
to suggest that someone other than Mr. Shrader lived in the house, and (3)
12
surveillance showing that Mr. Shrader was the only person seen entering
and leaving the house. The fact-finder could reasonably infer from this
evidence that Mr. Shrader had exclusive possession of the house. Thus, we
conclude that the evidence on constructive possession was sufficient for a
conviction.
IV. There was no violation of the Speedy Trial Act.
In relevant part, the Speedy Trial Act requires
 the filing of an information or indictment “within thirty days
from the date on which [an] individual was arrested or served
with a summons in connection with such charges” and
 the beginning of trial within 70 days “from the filing date . . .
of the . . . information or indictment . . . or from the date the
defendant has appeared before a judicial officer of the court in
which such charge is pending, whichever date last occurs.”
18 U.S.C. § 3161(b), (c)(1). Mr. Shrader contends that both his indictment
and his trial were untimely under the Act. We disagree.
A. Standard of Review
We review application of the Act’s legal standards de novo and
examine the district court’s factual findings for clear error. United States
v. Gonzales, 137 F.3d 1431, 1433 (10th Cir. 1998).
B. The indictment was timely.
We first consider whether the indictment was timely. Mr. Shrader
was indicted in the Northern District of Oklahoma on June 5, 2014. But he
was not arrested on the indictment until February 11, 2015, which is when
13
he made his first appearance in the Northern District of Oklahoma on the
charge in the Oklahoma indictment. See United States v. Shrader,
No. 4:14-CR-00096-CVE-1 (N.D. Okla. Mar. 25, 2015), ECF No. 25 at 1. 7
Thus, there was no violation of the Act’s 30-day deadline for an
indictment. See United States v. Bagster, 915 F.2d 607, 611 (10th Cir.
1990) (holding that “if a complaint is filed before federal arrest pursuant to
that complaint, the Speedy Trial Act is triggered at the moment of
arrest”). 8
Mr. Shrader contends that he was arrested on March 6, 2014 (when
the search warrant was executed). But that arrest pertained to the charges
in the District of Arizona, which are not involved here. See United States
v. Shrader, No. 4:14-mj-00035-PJC-1 (N.D. Okla. Mar. 6, 2014) (docket
annotation stating Mr. Shrader was arrested “on charges pending in another
district” (capitalization omitted)). 9 The next day, March 7, he was brought
before an Oklahoma magistrate judge, who (1) noted that Mr. Shrader had
7
The executed arrest warrant is not part of the record transmitted to
this court, but we may take judicial notice of the return. See Binford v.
United States, 436 F.3d 1252, 1256 n.7 (10th Cir. 2006).
8
As the district court noted, its docket reflects that Mr. Shrader was
arrested in Arizona on the Oklahoma charges on January 8, 2015. Even if
we used that date as the date of arrest, the indictment would have been
timely.
9
We take judicial notice of the filings in No. 4:14-mj-00035-PJC-1.
See Binford, 436 F.3d at 1256 n.7.
14
been ordered to appear in the District of Arizona and (2) ordered the
United States marshal to transport Mr. Shrader to the District of Arizona.
See id. (N.D. Okla. Mar. 7, 2014), ECF No. 3 at 1 (criminal information
sheet from a proceeding before a magistrate judge); id. ECF No. 6 at 1
(order committing Mr. Shrader to the District of Arizona). Thus, the
March 6 arrest did not trigger the 30-day deadline for an indictment in this
case. 18 U.S.C. § 3161(b).
C. The trial was timely.
Mr. Shrader’s February 11, 2015 arrest and appearance in the
Northern District of Oklahoma triggered the Act’s 70-day limit for trial.
See 18 U.S.C. § 3161(c)(1). The district court set a trial date of April 13,
2015, which would have fallen within 70 days of the arrest.
In early March 2015, Mr. Shrader moved for a continuance of the
April 13 trial date, the motion deadline, and a pre-trial and motions
hearing so that his newly-retained counsel would have sufficient time to
prepare pretrial motions. In addition, Mr. Shrader signed a waiver of his
rights under the Speedy Trial Act. The district court (1) granted the
continuance based on the ends of justice (18 U.S.C. § 3161(h)(7)), (2) reset
the trial for May 11, 2015, and (3) ruled that the period of time from
April 13 through May 11 was excludable from the Act’s 70-day period
15
under § 3161(h)(7). United States v. Shrader, No. 4:14-CR-00096-CVE-1
(N.D. Okla. Mar. 9, 2015), ECF No. 18 at 1-3. 10
Mr. Shrader has not questioned the continuance, alleging instead that
he could not be compelled to waive his rights under the Speedy Trial Act.
But there is no evidence of compulsion here. Accordingly, we conclude
that the trial occurred within the Act’s 70-day limit. 11
V. Conclusion
The judgment of the district court is affirmed.
Entered for the Court
Robert E. Bacharach
Circuit Judge
10
The district court’s order granting the continuance is not part of the
record transmitted to this court, but we may take judicial notice of the
order. See Binford, 436 F.3d at 1256 n.7.
11
Mr. Shrader also states that his trial violated the “120 day rule” of
the Interstate Agreement on Detainers Act. Appellant’s Opening Br. at 30.
This contention is not sufficiently developed for appellate review. See
United States v. Bader, 678 F.3d 858, 894 (10th Cir. 2012).
16