United States v Thompson

Thompson appealed his drug convictions and his sentence. The panel affirmed. It held there was no error in denying Thompson’s speedy trial motion because the district court made adequate ends of justice findings. The panel rejected a challenge to the admission of cell tower location evidence as United States Supreme Court precedent holds that once information is conveyed to a third party there is no violation of the 4th Amendment when the government obtains the records of the third party, Thompson use his cell phone which revealed his location through the cell tower ping and the cell phone company kept the record of those pings as business records, Thompson thus had no expectation of privacy and there was no violation when the government obtained it through an order pursuant to 18 USC 2703(d) instead of a search warrant. The panel noted that it joined the other four circuits which have considered the issue and acknowledged privacy concerns which could arise under the ruling but stated it was bound by the Supreme Court precedent and suggested that those who want greater protection lobby their legislatures. It affirmed the denial of Thompson’s motion to suppress as the cell tower ping information was properly considered as part of the warrant application and there was no error in using the preponderance standard at the suppression hearing given that standard is used for criminal venue decisions and 4th amendment issues generally. It held that the reasonable doubt instruction at Thompson’s trial was constitutional under circuit precedent. It finally affirmed the sentence holding there was no clear error in using an extrapolation method I calculating the drug quantity based on evidence from intercepted phone conversations and no clear error in applying the leadership enhancement based on Thompson’s recruiting and directing other participants in the conspiracy.

United States v Pickel

Pickel appealed his drug convictions and a forfeiture order. The panel affirmed the convictions and reversed the order and remanded for resentencing on the forfeiture issue. It held that Pickel’s motion to suppress drugs found during a traffic stop was properly denied under the collective knowledge doctrine as Kansas law enforcement had probable cause to pull Pickel over based on intercepted phone conversations and physical surveillance including following the truck for three hours and seeing the auxiliary gas tank which was similar to a tank where drugs were found earlier in a coconspirator’s truck and the Nebraska trooper who did the stop was directed to do so by Kansas officials. It held there was sufficient evidence to sustain the conspiracy conviction as the evidence at trial established a single marijuana distribution conspiracy, evidence that Pickel collected payments, directed transactions, packaged marijuana for transport set up an indoor growing facility and drove a truck with 37 pounds of marijuana in an auxiliary gas tank and intercepted phone calls revealed Pickel’s contributions significantly affected the rest of the conspiracy. It rejected Pickel’s variance argument holding there was one conspiracy and thus no variance. It affirmed the conviction for using a communication device to facilitate drug trafficking holding the evidence that Pickel made a phone call to another conspirator and discussed delivery of marijuana was sufficient to convict. The panel noted that Pickel conceded in his reply brief that 21 USC 841(b)(1)(D) does not have a maximum term for supervised release and thus the 10-year term here is valid. It finally reversed the forfeiture order as recent United States Supreme court precedent limits forfeiture in drug cases to monies actually received by a artificant and thus the joint and several order here must be reversed and the issue remanded for further proceedings.

United States v Haymond

Haymond appealed the revocation of his supervised release and the mandatory five-year reimprisonment sentence imposed. The panel, with one ember dissenting in part, affirmed the revocation but held the mandatory reimprisonment unconstitutional. The majority held that the district court erred in finding the expert testimony given supported the conclusion that Haymond volitionally downloaded child pornography images onto his phone as the expert witness actually testified unknowing download was possible. However, it held that in this close case there was no clear error in finding Haymond more likely than not voluntarily downloaded the images as he had control of the phone, the images at some point were available on the phone and the images were consistent with the images which formed the bas of Haymond’s underlying conviction. The majority held the mandatory minimum reimprisonment in 18 USC 3583(k) is unconstitutional because it strips sentencing judges of discretion to impose punishment within a statutory range as the mandatory minimum reimprisonment minimum increase based on the findings of violation by the court and imposes punishment for new conduct without a jury finding of guilt both of which violate due process. The majority held that the mandatory minimum reimprisonment language is unenforceable as it can be severed from the revocation statute generally and leave child pornography triggered revocations covered by the general renovation provisions. The case was remanded for further proceedings. Judge Kelly concurred in part and dissented in part arguing the district court’s findings about how the images got onto the phone were a permissible view of the evidence and arguing that the revocation proceeding is a civil matter, that one of the terms of supervised release is to not violate criminal laws and thus any reimprisonment is for violating a term of release not a new conviction and Congress can set higher penalties for child pornography violations than other violations.