United States v. Schlieve ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
THE UNITED STATES COURT OF APPEALS
March 22, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-41112
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL LYNN SCHLIEVE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(USDC No. 4:03-CR-84-RAS-22)
Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Paul Lynn Schlieve appeals his conviction on federal drug
charges. We substitute this opinion for our original1 and affirm.
I
A
On May 19, 2003, Officer James Edland, an eleven-year
veteran of the Pilot Point Police Department, waited near the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1
2005 WL 3105821 (5th Cir. 2005).
house of Sherry Craver’s stepfather to arrest Craver on a federal
warrant for conspiracy to manufacture and possess with the intent
to distribute methamphetamine. While waiting for Craver, Edland
saw a green Dodge pickup truck pull into the driveway. About
fifteen minutes later, Craver arrived and Edland arrested her
before she entered the house. On her way to jail, Craver stated
to Edland that the truck in the driveway belonged to Gary Don
Franks. Edland recalled Whitesboro, Texas police officer David
Scott saying earlier that day that Franks had been cooking large
batches of drugs. Upon arriving at the Whitesboro Police
Department, Edland contacted Pilot Point officer Joe Morgan and
ordered him to observe the house and the truck.
Edland later returned to the house, relieved Morgan, and
continued surveillance because he was concerned that Franks would
be there with drugs. The truck left the house around 8:45PM, and
Edland followed it. After observing the truck following too
closely, failing to stop at a stop sign, and speeding, he stopped
the truck around 8:50. Officer Morgan arrived a minute or two
later. The defendant, Paul Schlieve, was driving with a
passenger, Robbie Reynolds.
Schlieve gave Edland his driver’s license and a concealed
gun permit. Edland ordered Schlieve to step out of the truck.
Schlieve volunteered that he had a gun in a his pocket and that
2
there were other guns behind the seat of the truck. Edland took
possession of the gun in Schlieve’s pocket. Edland then returned
to his car and ran a check on Schlieve’s drivers’s license, which
took about five minutes. The check revealed no outstanding
warrants.2
Edland returned to the truck - now about ten minutes into
the stop - and asked Schlieve why he was driving the truck.
Schlieve told Edland that Franks had asked him to drive his truck
to the gas station because it was almost out of gas. Edland did
not believe the story because Schlieve had just passed a gas
station. After realizing that Edland did not believe his story,
Schlieve stated that Franks had asked him to pick up the truck
because Franks was afraid to leave his house after Craver’s
arrest. Schlieve also denied knowing about any drugs in the
truck. Edland and Morgan testified that, during this
questioning, Schlieve was nervous, sweating, avoiding eye
contact, and stuttering.
About twenty-five minutes after the stop,3 Edland asked to
search the truck. Schlieve refused consent, after which Edland
2
The evidence does not show that Edland returned Schlieve’s license. This
is irrelevant, however, as we assume that Schlieve was in custody throughout the
stop.
3
There is a discrepancy about the timing here. Officer Edland testified
that he spoke to Schlieve for a “couple” of minutes, or “five or ten minutes.”
From the facts that are undisputed, it appears that he talked to Schlieve for
about fifteen minutes, beginning ten minutes into the stop.
3
told him to wait while he located a K-9 unit.
Because Pilot Point did not have its own K-9 unit, Edland
called Denton County around 9:20, but the county was unable to
provide one. Edland then called Scott at about 9:25; Scott
called fellow Denton Police Officer Junior Torres, who
immediately left a softball game some 25 miles away, went home,
retrieved his dog, and began driving to the scene. Edland was
told that the K-9 unit was on its way. Edland told Schlieve that
the K-9 was coming, and Schlieve and Reynolds waited, sitting in
a grassy area near the cars.
While waiting, the officers asked Schlieve if they could
check the other guns in the truck. Schlieve agreed and removed
five pistols and a rifle. Morgan ran checks on these guns
starting at about 9:30.4 It took about twenty minutes to run the
checks, which eventually showed that the guns were not stolen.
The K-9 unit arrived around 10:15 or 10:30, about twenty
minutes after the gun check was completed. The dog alerted to
the truck, and the officers found methamphetamine and a sawed-off
shotgun. They arrested Schlieve.
B
An indictment charged Schlieve with possession with intent
4
Schlieve contends that Morgan began running the gun check around 9:15,
before calling for the dog. This discrepancy is irrelevant, as we explain later.
See infra notes 22, 22.
4
to distribute, conspiracy to do the same, use of a firearm during
a drug trafficking crime, and possession of an unregistered
firearm. Prior to trial, Schlieve moved to suppress the drugs
and guns seized during the traffic stop.
During the suppression hearing, Edland testified that he had
arrested Craver before she entered her stepfather’s house and
that he had not heard Schlieve’s name before stopping him. He
never heard of Schlieve until he called Scott during the stop,
when Scott told him that Schlieve was a close associate of
Franks.
Morgan testified that he joined Edland of his own volition.
Morgan talked to Reynolds, whom he had known previously for his
criminal activity. He patted down Reynolds, and Reynolds told
him that Schlieve had been trading weapons with the owner of the
house.
Scott testified that after Edland called him to request a K-
9 unit, it took him about ten minutes to locate Torres. He
testified that Schlieve and Franks were “synonymous” because they
were good friends and roommates. He had learned about Franks’
participation in the methamphetamine cooking conspiracy from
another co-conspirator, and he also knew that Franks had been
involved in drug trafficking in the past.
Following the hearing, the district court denied the motion
5
to suppress. It estimated that the weapons check ended around
9:52 and that Torres arrived around 10:38, so that the “relevant”
time period - “the length of detention beyond the purpose for the
initial stop” - was this forty-six minutes. The court found that
Edland knew that the truck was owned by Franks, that Franks was
involved in manufacturing methamphetamine, that the truck was
previously parked at a house where someone had just been arrested
for a drug offense, that Schlieve was an associate of Franks,
that Schlieve gave conflicting stories, and that Schlieve was
nervous. The court concluded that the attempts to obtain a K-9
unit were “likely to quickly confirm or dispel” the suspicions of
the police, that the police were diligent in obtaining the K-9
unit, that Schlieve did not feel free to leave during this time
period and thus was seized, and that the forty-six minute
detention was reasonable.
The jury convicted Schlieve on all four counts. He moved
for a new trial, asserting among other things that the Government
failed to turn over a second videotape, one from Morgan’s car.5
The district court denied that motion and sentenced him to 160
months imprisonment plus five years of supervised released.
5
Schlieve contends that he did not learn of the alleged second videotape
until Morgan testified at trial.
6
II
Schlieve first contends that the district court erred in
denying his motion to suppress the evidence from the traffic
stop. When reviewing a ruling on a motion to suppress, we review
findings of fact for clear error and findings of law de novo.6
Schlieve concedes that Edland had the right to stop him in
the first place on the basis of his traffic violations, but he
maintains that once a check on his license revealed no
violations, he should have been ticketed or allowed to leave. He
contends that information known to the officer at that time was
insufficient to establish reasonable suspicion under Terry v.
Ohio7 to support continued detention. He also argues that, even
if there was reasonable suspicion at that time, the officers did
not act diligently to confirm or dispel that suspicion.
In determining whether a search and seizure is reasonable
under Terry, the court asks “‘whether the officer’s action was
justified at its inception, and whether it was reasonably related
in scope to the circumstances which justified the interference in
6
United States v. Shabazz, 993 F.2d 431, 434 (5th Cir. 1993).
7
392 U.S. 1 (1968). See United States v. Shabazz, 993 F.2d 431, 434 (5th
Cir. 1993) (“[S]earches and seizures of motorists who are merely suspected of
criminal activity are to be analyzed under the framework established in Terry.”).
The Government does not argue that Schlieve could not complain about the
detention because he did not own the truck; nor could it, under this court’s
holding in United States v. Dortch, 199 F.3d 193, 198 n.4 (5th Cir. 1999).
7
the first place.’”8 “[A]n investigative detention must be
temporary and last no longer than is necessary to effectuate the
purpose of the stop.”9 In United States v. Brigham, this court
held that a Terry stop may last as long as is reasonably
necessary to effectuate the purposes of the stop, including the
resolution of reasonable suspicion that emerges during the
stop.10 The government bears the burden of showing the
reasonableness of a warrantless search or seizure.11
During a traffic stop, once a computer check is completed
and the officer either issues a citation or determines that no
citation should issue, the detention should end and the vehicle
should be free to leave.12 In order to continue a detention
after this point, further reasonable suspicion must have
emerged.13 In addition, the length of an unreasonable detention
is irrelevant - this court has held that a three-minute delay,
United States v. Jones,14 or a delay of “moments,” United States
8
Shabazz, 993 F.2d at 435 (quoting Terry, 392 U.S. at 19).
9
Fla. v. Royer, 460 U.S. 491, 500 (1983).
10
382 F.3d 500, 507 (5th Cir. 2004).
11
United States v. Chavis, 48 F.3d 871, 872 (5th Cir. 1995).
12
United States v. Dortch, 199 F.3d 193, 198 (5th Cir.), corrected on
denial of reh’g, 203 F.3d 883 (5th Cir. 2000).
13
United States v. Jones, 234 F.3d 234, 241 (5th Cir. 2000).
14
Id.
8
v. Dortch,15 or a “trivial delay,” United States v. Ellis,16
between the completion of the computer check and a later search
or dog sniff can be unreasonable.
We must first analyze whether reasonable suspicion existed
at the moment after the license check came back clean. At this
point, Edland knew that Schlieve had no outstanding warrants;
furthermore, because Schlieve had a concealed gun permit, he knew
that Schlieve was not an ex-felon.17 But Edland knew that
Schlieve was driving a truck owned by Gary Don Franks, a known,
recently active drug dealer. Furthermore, the car had just come
from a house where someone was arrested for a drug offense, and
the passenger was a known criminal. This is sufficient for
reasonable suspicion under Terry, and it distinguishes this case
from those where we held that unknown people in unknown cars
could not be detained after the license check came back clean.18
15
Dortch, 199 F.3d at 198.
16
330 F.3d 677, 681 (5th Cir. 2003).
17
Under Texas law, ex-felons cannot receive concealed gun permits. And,
as this court has held, “firearm ownership is not inherently evil or suspect.”
United States v. Emerson, 270 F.3d 203, 217 (5th Cir. 2002)
18
See United States v. Santiagio, 310 F.3d 336, 340 (5th Cir. 2002)
(holding that reasonable suspicion did not exist to detain the defendant after
the computer check where, prior to the check, the officer noticed that the
defendant was from out of state, that his hands were shaking, and that he and his
fellow passengers gave conflicting stories about their travel plans); Dortch, 199
F.3d at 200 (same, where prior to the check the defendant was nervous and there
was confusion as to the renter of the vehicle and inconsistent answers about
travel plans); Jones, 234 F.3d at 241 (same, where prior to the check the
defendant made inconsistent statements concerning his employment and had a drug-
9
The later suspicious information - Schlieve’s changing stories
and nervous behavior and Scott’s information about Franks’
relationship with Schlieve - was cumulative, so that reasonable
suspicion existed throughout the stop.19
Our next inquiry is whether the police “diligently pursued a
means of investigation likely to quickly confirm or dispel”20
their reasonable suspicion about Schlieve possessing drugs.
Right after the license check came back clean, Edland
persistently questioned Schlieve about where he was going and
what he was doing.21 He then asked for consent to search the
trunk, and immediately after Schlieve refused,22 he began his
related criminal history).
19
Schlieve contests this evidence, claiming, for example, that he was not
acting nervously, but this is irrelevant to our holding because the evidence is
only cumulative.
20
United States v. Hare, 150 F.3d 419, 427 (5th Cir. 1998) (quoting United
States v. Sharpe, 470 U.S. 675, 683 n.3 (1985)).
21
Edland was not obligated to call a dog right away; his questioning of
Schlieve was a proper means of following up on his reasonable suspicion of drugs,
at least initially. The situation is unlike that in Dortch, 199 F.3d at 200,
where the court upheld the suppression of evidence when the police called for a
drug dog 9-10 minutes into the stop, before the computer check came back
negative. In Dortch, the court explicitly noted that there was never reasonable
suspicion of drugs, so that when the computer check came back negative, before
the dog arrived, there was no justification for continued detention. The court’s
dicta suggesting that police suspecting drugs should anticipate needing a drug
dog right away is in apropos because the police in that case specialized in drug
interdiction, and because the court never stated that probative questioning was
an unreasonable means of initially following up on suspicion of drugs.
22
Even if Schlieve is correct that the officers began the gun check before
calling for the dog, the gun check was part of the officers’ overall follow-up
on their suspicion of drugs. Again, the officers were not obligated to call a
dog as soon as they pulled Schlieve over.
10
search for a dog. His first unsuccessful call was promptly
followed by his second call to Scott. Scott contacted Torres,
who left his softball game at once to retrieve his dog and go to
the scene. The police were not dilatory in following up on their
suspicions, despite the fact that it was over an hour between the
return of the license and the arrival of the dog.
For these reasons, we affirm the district court’s denial of
the motion to suppress.
III
Schlieve next argues that the loss or destruction of an
alleged second videotape of the stop, which, unlike the tape seen
at trial, supposedly contained audio, violated the Jencks Act23
and Brady v. Maryland.24 Even if this tape existed, and even if
it contained a “statement by a witness” under the Jencks Act, in
lost or destroyed evidence cases under both the Jencks Act and
Brady, we perform a sort of harmless error analysis: we “‘weigh
the degree of negligence or bad faith involved, the importance of
the evidence lost, and the evidence of guilt adduced at trial in
order to come to a determination that will serve the ends of
23
18 U.S.C. § 3500 (2000).
24
373 U.S. 83 (1963).
11
justice.’”25 Employing this test and reviewing the district
court’s findings of fact for clear error and findings of law de
novo,26 we affirm.
Although Schlieve has presented no evidence of bad faith, he
argues that the police were at least negligent is losing the
alleged tape. Even if that were so, the “evidence of guilt
adduced at trial” was overwhelming and the “importance of the
evidence lost” was negligible. Schlieve does not contend that he
would have been acquitted had the alleged second tape been
introduced at trial along with the evidence taken from the stop.
Indeed, that seems unlikely given the Government’s powerful case.
Rather, he contends that the tape would have been useful in
arguing his motion to suppress because it would have helped to
establish the time-frame of the stop. But the officers testified
during the suppression hearing as to the timing of events and
Schlieve argues that their testimony differed in only one respect
from what actually happened. And, as explained above, that
difference is irrelevant.27 Moreover, the alleged second tape
was unnecessary to clarify the timing of events because the
25
United States v. Ramirez, 174 F.3d 584, 589 (5th Cir. 1999) (quoting
United States v. Bryant, 439 F.2d 642, 653 (D.C. Cir. 1971)); Johnston v.
Pittman, 731 F.2d 1231, 1234 (5th Cir. 1984).
26
United States v. Shabazz, 993 F.2d 431, 434 (5th Cir. 1993).
27
See supra notes 4, 21, 22.
12
silent tape was available and had a timer. Schlieve’s argument
that audio would have helped him to impeach Edland and Morgan
during the hearing because it would have shown he was not nervous
is immaterial because, as described above, Schlieve’s alleged
nervousness has no bearing on the relevant Terry questions of
whether reasonable suspicion existed after the license check came
back clean and whether the police diligently followed up on that
suspicion.
IV
Finally, Schlieve argues that the Government denied him due
process when it knowingly introduced at trial perjured testimony
of Robbie Reynolds, the passenger in the truck. We disagree.
The Government violates a defendant’s due process rights
when it knowingly uses perjured testimony or allows false
testimony to go uncorrected. “To prove a due process violation,
the [defendant] must establish that (1) [the witness] testified
falsely; (2) the government knew the testimony was false; and (3)
the testimony was material.”28 When a defendant does not object
to the testimony at trial, this court reviews for plain error,29
meaning that this court can correct a forfeited error only when
28
United States v. Mason, 293 F.3d 826, 828 (5th Cir. 2002) (citing Giglio
v. United States, 405 U.S. 150 (1972)).
29
FED. R. CRIM. P. 52(b); United States v. Johnston, 127 F.3d 380, 392 (5th
Cir. 1997).
13
the appellant establishes: (1) that there is an error; (2) that
the error is clear or obvious; and (3) that the error affects his
substantial rights.30 If these factors are established, then the
decision to correct the error is within the court’s sound
discretion, which should not be exercised unless the error
seriously affects the fairness, integrity, or public reputation
of the judicial proceedings.31 Because Schlieve did not object
to the error at trial, as he concedes, he must meet this stricter
standard.
Schlieve argues that the Government knowingly offered
perjured testimony on two topics: the drugs in the truck and an
alleged statement by Schlieve to Reynolds.
During direct testimony, Reynolds testified that he and
Franks had been at the home of Robert Loftice, the house where
Craver was arrested. They entered a shed in the backyard which
contained evidence of a methamphetamine “cook.” Reynolds
testified that he saw “a glass jar that had some kind of rock-
salt-looking stuff in it.” When asked what the substance was, he
testified that it was “what they called bones, which is - I guess
it’s the stuff that’s left over after you make methamphetamine.”
Later, Franks gave Reynolds a bag holding that jar and a small
30
United States v. Olano, 507 U.S. 725, 732 (1993).
31
Id. at 736.
14
baggie. When Reynolds and Schlieve were in the truck, Reynolds
opened the bag and pulled out the jar. On redirect, the
Government asked Reynolds whether Schlieve told him to get out of
the truck or get rid of the jar when Reynolds showed him “the
container that you know had the bones in it that you know are
drugs.” Reynolds testified that Schlieve did not tell him to do
so.
Schlieve argues that he had the jar tested after trial and
that it contained rock salt, not methamphetamine. He argues that
the Government knew (or should have known) this because it had
possession of the jar before and during trial and never tested
its contents. On appeal, the Government does not argue that the
jar contained methamphetamine; rather, it argues that the DEA
chemist testified at trial that the reddish-brown colored
substance in the baggie next to the jar actually contained the
bones. It argues that during closing argument, the Government
contended that the baggie contained the bones and only mentioned
the jar on rebuttal when the prosecutor reminded the jury that he
had asked Reynolds what he believed the substance to be.
Schlieve has not shown plain error. First, there was no
plain error because Reynolds’ testimony cannot be called
15
“false.”32 Even if the jar did contain only rock salt (which the
Government seems to concede), Reynolds’ testimony was only about
what he thought the jar contained,33 which is relevant to what
Schlieve thought the jar contained. And the Government argued in
closing that the baggie contained the bones; it only mentioned
the jar in reference to what Reynolds believed.
Second, even if the testimony were “false,” there was no
plain error because Schlieve has not shown that the Government
knew the testimony was false. The Government was, at most,
sloppy in its references to the drugs. The transcript does not
show that the Government knowingly elicited false testimony or
tried to mislead the jury.
Third, there was no plain error because even in the unlikely
event that the testimony was material, it certainly does not pass
the higher threshold of affecting the defendant’s “substantial
rights” - prejudice - required under plain error analysis.
First, the jury was already aware that the jar may not have
contained actual drugs because Franks testified that he could not
32
Schlieve argues that this court has held that a due process violation
does not require the evidence actually to be false where “the context in which
the testimony was invoked, and the argument made by the prosecutor . . .
[created] implications that were false.” Barrientes, 221 F.3d at 753. However,
the Government here simply did not create false implications.
33
Given that Reynolds also testified that Franks had told Loftice that “he
had enough in that jar to put him away for the rest of his life,” Reynolds’
belief seems certainly reasonable.
16
recall what was in the jar but thought it might be coffee filters
used to strain the methamphetamine, or maybe rock salt. Second,
Schlieve does not complain about Reynolds’ and Franks’ testimony
that Franks told Schlieve that he would be “riding hot” and that
there would be “guns and things” in the truck. Neither does he
complain about Reynolds’ testimony that Schlieve asked Reynolds,
after Reynolds pulled the jar out of the bag while they were
riding in the car, if there was powder in the bag; in fact, there
was powder methamphetamine in the bag, which Schlieve does not
dispute. And he does not complain about Franks’ testimony that
the plan was for Reynolds to grab the bags and run if Schlieve
was pulled over by the police, in combination with Reynolds’
testimony that when the police began to stop Schlieve, Schlieve
asked Reynolds if he was going to run. Given all of this
evidence, it seems clear that Reynolds’ mistake as to the
contents of the jar did not prejudice Schlieve - a jury easily
could have concluded that Schlieve had knowledge of the drugs.
Finally, even if there were an error, in no way was it
“clear or obvious;” and even if it were clear or obvious, the
error did not “seriously affect[] the fairness, integrity, or
public reputation of the judicial proceeding[].”34 Schlieve has
34
Olano, 507 U.S. at 732.
17
shown neither of these two things.
Schlieve also challenges Reynolds’ testimony about a
statement purportedly made by Schlieve during the “search” of the
car by the K-9 unit. During direct examination, the prosecutor
asked Reynolds whether he and Schlieve had a conversation after
the dog arrived. Reynolds stated that, while sitting together in
a ditch, he and Schlieve had wondered if the dog was finding
anything; he also admitted previously stating that Schlieve had
said at that time that he did not think the officers had found
the dope in the truck. On cross-examination, Reynolds testified
that they were talking about the dope because both he and
Schlieve were aware that there were drugs in the truck.
Schlieve challenges this testimony, which shows his
knowledge of the drugs, claiming that Edland’s videotape shows
that the conversation could not have occurred. Schlieve claims
that the videotape shows that he and Reynolds were separated
after the K-9 unit arrived, so that he could not have made this
comment to Reynolds while the dog was searching the truck. A
review of the tape, however, shows that Reynolds and Schlieve are
not visible on the tape until after Torres and the dog had
already conducted a preliminary examination of the truck, at
which time they were separated. Therefore, because their
location is not known when the dog first began searching the
18
truck, the videotape does not establish that Reynolds’ testimony
was false or that the Government knew of its falsity. (And,
again, Schlieve cannot show that the testimony substantially
affected his rights, or even was material, because of the
overwhelming evidence, described above, that Schlieve knew of the
drugs in the truck.)
V
For the foregoing reasons, Schlieve’s conviction is
AFFIRMED.
19