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United States v. Carr

United States Court of Appeals, Eighth Circuit

July 20, 2018

United States of America Plaintiff- Appellee
Michael Patrick Carr Defendant-Appellant United States of America Plaintiff- Appellee
Jonathan Leroy Homedew Defendant-Appellant

          Submitted: January 12, 2018

          Appeals from United States District Court for the Southern District of Iowa - Des Moines

          Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.

          SMITH, Chief Judge.

         This is a consolidated appeal of two drug coconspirators' cases. Jonathan Leroy Homedew was convicted of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(a), and 846. He appeals the district court's[1] denial of his motion to suppress and alleges that his trial counsel's ineffective assistance led to the denial of his motions to dismiss the indictment for violation of his speedy trial rights. Michael Patrick Carr was convicted of possession of methamphetamine, in violation 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). He appeals the substantive reasonableness of his prison sentence. We affirm.

         I. Background

         On September 7, 2016, United States Postal Inspector Kevin Marshall identified a suspicious package while conducting a routine examination of parcels at the United States Postal Service's facility in south Des Moines, Iowa. After a drug-sniffing dog alerted to the presence of a controlled substance, Marshall obtained a search warrant to open the package.[2] He found that the parcel contained approximately one kilogram of methamphetamine.

         Law enforcement conducted a controlled delivery of the package to its intended address. Shortly after the package was delivered, Carr arrived in a vehicle registered to Homedew. Carr retrieved the package and drove off. The authorities arrested Carr shortly thereafter. He chose to cooperate with police. Carr disclosed that he had a business relationship with "Jon." Carr stated that he anticipated receiving another approximately 27 pounds of methamphetamine from Jon that had already been shipped. Carr also told police that Jon was flying into town the next evening. Using text messages Carr showed them, Jon's cell phone number, and a social media search, law enforcement concluded that Jon was Jonathan Homedew.

         On September 8, about ten law enforcement officers positioned themselves around the Des Moines airport in anticipation of Homedew's arrival. They spotted him leaving the airport with a backpack. Police arrested Homedew and took possession of his backpack. The backpack was not immediately searched. Officers escorted Homedew to a police vehicle, and when asked, Homedew disclosed that he had checked one bag. Officer Ben Carter asked Homedew for permission to look in the backpack to retrieve the baggage claim receipt. Homedew told him to "go ahead," and said the receipt would be in the top pouch. United States v. Jonathan Leroy Homedew, No. 4:16-cr-0145-JAJ-HCA-1, slip op. at 3 (S.D. Iowa Dec. 22, 2016), ECF No. 130. While looking for the baggage receipt, Carter noticed three postal receipts commingled with other papers in the pouch. Given what he knew about the case to that point, he surmised that the postal receipts could contain incriminating information and seized them as well. Carter then began opening another zipper, prompting Homedew to withdraw his consent to look in the bag. Carter stopped the search. Upon Homedew's and the officers' arrival at the police station, Carter made copies of the receipts and went online to track their progress. He also provided copies to Marshall, the postal inspector.

         After being transported to the police station, Homedew consented in writing to a police interview. He was Mirandized and told that he was not obligated to participate in or continue the interview. Homedew expressed his belief that the search of his backpack at the airport had exceeded the scope of his consent. Nonetheless, he eventually consented to the search of his backpack and checked bag. Notes found in his checked luggage corroborated information Carr gave police about the drug operation.

         Using the postal receipts, Marshall retrieved eight more packages containing methamphetamine-seven at the Des Moines postal station, and one at the post office in Winterset, Iowa.

         On September 21, 2016, the government indicted Homedew and Carr, as well as Sonya Rae Tucker and Amber Marie Shipp, with conspiracy to distribute over 50 grams of actual methamphetamine and 500 grams of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Carr, Tucker, and Shipp were also charged with a single count of possession with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C).

         On November 7, 2016, Homedew's appointed counsel moved to suppress evidence obtained from the search of his backpack and seizure of the postal receipts, including the fruits of the search of his checked baggage and other items, arguing that the search and seizure violated his Fourth Amendment rights.

         The court consolidated the defendants' trial schedules and set trial for all four defendants for November 28, 2016. On November 1, Shipp's counsel moved to continue the trial for three months, alleging that Shipp needed time to work out her plea deal and that her codefendants had no objection. The court granted the motion following a hearing and reset trial for February 13, 2017. The court, citing the ends of justice, excluded the time between the filing of the motion and the new trial date from consideration under the Speedy Trial Act. See 18 U.S.C. § 3161(h)(1)(7)(A).

         On December 16, upon discovering the continuance, Homedew filed a pro se motion claiming that his attorney had ignored his clear request to file an objection to any continuance of his trial. Homedew asserted a violation of his right to a speedy trial. He also requested that the court appoint him new counsel. He subsequently filed a pro se motion to sever and a pro se motion to dismiss. The gravamen of both motions was that delays in the case violated his right to a speedy trial under both the Speedy Trial Act and the Sixth Amendment. The court appointed substitute counsel, who also filed a motion to dismiss the indictment for violations of Homedew's right to a speedy trial. The pro se and counsel-filed motions to dismiss alleged that Homedew's previous counsel had failed him by consenting to a continuance against his wishes.

         The district court denied Homedew's motion to suppress. First, it found that Homedew had voluntarily consented to the search of his backpack. Second, the court found that the search was properly undertaken incident to Homedew's arrest. Third, the court found that the plain view doctrine justified the seizure of the postal receipts. Finally, the court denied the motion under the inevitable discovery doctrine. It explained that even if the search was improper, the information possessed by the police at that point would have, in concert with their investigative techniques, resulted in the discovery of the remaining methamphetamine.

         The court also denied the speedy trial motions, determining that fewer than 40 excludable days had elapsed since Homedew's arraignment. It also noted that Homedew had not provided any authority in support of his proposition that an objection to the continuance should have prevented an otherwise justifiable resetting of the trial date. A jury ...

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