United States v. Carter ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 2, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-3193
(D.C. No. 2:16-CR-20032-JAR-2)
KARL CARTER, (D. Kan.)
Defendant.
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TYWAN A. POOLE,
Movant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, McHUGH, and CARSON, Circuit Judges.
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Tywan A. Poole, proceeding pro se, appeals from the district court’s denial of
his motion for discovery and return of seized property under Rule 41(g) of the
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
Federal Rules of Criminal Procedure. Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm.
I. Background
A. Proceedings in the Western District of Missouri
Mr. Poole entered a guilty plea to a two-count information in the Western
District of Missouri charging him with possession with intent to distribute 10 grams
or more of PCP and being a drug user in possession of a firearm. He was sentenced
to serve 96 months in prison. Between 2015 and 2019, Mr. Poole made a number of
attempts to collaterally attack his conviction and/or sentence in the Western District
of Missouri and the Eighth Circuit, but all of his attempts were unsuccessful.
Mr. Poole spent part of his imprisonment at a detention facility in Leavenworth,
Kansas operated by Corrections Corporation of America (“CCA”).
B. Proceedings in the District of Kansas
This case arises from a motion Mr. Poole filed in a criminal case against other
defendants, in the District of Kansas, related to events at the Leavenworth detention
facility (“CCA-Leavenworth”). The Kansas case, No. 16-cr-20032, began in April
2016 when Lorenzo Black, Karl Carter, and five other defendants were charged with
offenses related to smuggling contraband into CCA-Leavenworth.1 A few months
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Although this case has been referred to as United States v. Black in prior
proceedings in this court and in the government’s brief, the caption on the district
court’s order that is being appealed and that is now being used in this appeal is
United States v. Carter. Although Mr. Black originally was the first named
defendant, Mr. Carter was the only defendant that remained in the case after
August 1, 2018, and Mr. Poole filed his Rule 41(g) motion in April 2019.
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later the Federal Public Defender’s Office for the District of Kansas (“FPD”) sought
to intervene and filed a motion under Rule 41(g) for “Return of information.” R. at
16. The FPD alleged in its initial motion and in an amended motion that CCA
recorded meetings and calls between attorneys and clients at CCA-Leavenworth and
provided those recordings to the United States Attorney’s Office (“USAO”) for the
District of Kansas, in violation of the Sixth Amendment. Although the FPD did not
represent any of the defendants in the case, it represented a number of detainees at
the CCA-Leavenworth facility. Mr. Carter, as well as two other defendants from the
District of Kansas that were not defendants in the case, filed motions to join the
FPD’s Rule 41(g) motion. The district court ultimately appointed a special master to
investigate the allegations in the FPD’s Rule 41(g) motion.
In February 2018, the government filed a petition for a writ of mandamus
seeking an order directing the district court to terminate Phase III of the special
master’s investigation, quash subpoenas, and restrict the use of subpoenas going
forward. We granted the mandamus petition in limited part, directing “the district
court to limit the scope of investigation and inquiries to matters related to defendants
before the court in United States v. Black, No. 16-20032-JAR, and to other parties in
Black who have filed Rule 41(g) motions in that proceeding.” Supp. R., Vol. 1 at 16.
In its subsequent Findings of Fact and Conclusions of Law, the district court
recognized the “two categories of parties” set out in our mandamus order. Supp. R.,
Vol. 2 at 33. It then explained that it followed our “directive” and only addressed
motions that “[fell] within the scope of the Tenth Circuit’s mandate.” Id. at 34.
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C. Mr. Poole’s Rule 41(g) Motion
In April 2019, Mr. Poole filed an “Addendum to Motion for Discovery
Summary Judgment of Seized Property under Fed. R. Crim. P. 41(g).” R. at 76
(some capitalization omitted). Although he stated that he wanted the court to allow
him to amend his “original Motion under Rule 41(g),” id., there is no record that he
ever filed an earlier Rule 41(g) motion in District of Kansas case 16-cr-20032. He
indicated that he was attaching two documents as proof of prejudice from Sixth
Amendment violations while he was housed at CCA-Leavenworth. The district court
denied Mr. Poole’s motion. He now appeals from the district court’s decision.
II. Discussion
We review the district court’s denial of a Rule 41(g) motion for abuse of
discretion. See United States v. Copeman, 458 F.3d 1070, 1072 (10th Cir. 2006).
In denying Mr. Poole’s Rule 41(g) motion, the district court stated:
This case deals exclusively with the Sixth Amendment claims of . . .
detainees prosecuted by the USAO for the District of Kansas. The [FPD]
has been appointed to represent all litigants from the District of Kansas who
seek relief on claims such as these. The Court has ordered the return of all
recordings to the FPD, which will then determine whether and to what
extent to seek relief for individual litigants under 28 U.S.C. § 2255. That
office has not been appointed to represent litigants from the Western
District of Missouri. Thus, the Court finds no basis to allow non-District of
Kansas litigants to intervene in this matter for the purposes of obtaining
relief.
R. at 84-85.
On appeal, Mr. Poole fails to address the reasoning in the district court’s
denial order and instead argues the merits of his Rule 41(g) motion. Given that
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Mr. Poole is not a defendant in United States v. Carter, he was not prosecuted in the
District of Kansas, his criminal proceedings concluded in 2015, and he was not
represented by the FPD during his post-conviction detention at CCA-Leavenworth,
he has not shown why he should be entitled to relief in the United States v. Carter
case. The district court’s decision denying Mr. Poole’s Rule 41(g) motion is
consistent with the scope of the case set out in its Findings of Fact and Conclusions
of Law, see, e.g., Supp. R., Vol. 2 at 19, 33-35, and with the directive in our
mandamus order, see Supp. R., Vol. 1 at 16. We see no abuse of discretion in the
district court’s denial of Mr. Poole’s Rule 41(g) motion.
III. Conclusion
We affirm the district court’s judgment. We grant Mr. Poole’s motion for
leave to proceed on appeal without prepayment of costs or fees. Because the relevant
statute excuses only “prepayment of fees,” 28 U.S.C. § 1915(a)(1), we remind
Mr. Poole that he remains obligated to pay the full docketing and filing fee to the
Clerk of this Court.
Entered for the Court
Joel M. Carson III
Circuit Judge
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