United States v. John Pickens, Jr. ( 2023 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-1292
___________________________
United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
John Sheldon Pickens, Jr.
lllllllllllllllllllllDefendant - Appellant
____________
Appeal from United States District Court
for the District of Minnesota
____________
Submitted: October 21, 2022
Filed: January 25, 2023
____________
Before LOKEN, GRUENDER, and GRASZ, Circuit Judges.
____________
LOKEN, Circuit Judge.
A jury convicted John Sheldon Pickens, Jr., of possessing at least five
kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Pickens
retained new counsel and moved for judgment of acquittal or a new trial, raising
numerous issues. The district court1 denied the motion. Pickens appeals, raising the
1
The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
same issues. His principal argument, raised for the first time in the post-verdict
motion, is that law enforcement violated the Fourth Amendment by using expired
tracking warrants to locate him when he was arrested returning to the Twin Cities
from a trip to Chicago with thirteen pounds of cocaine in his vehicle. The cocaine
and other evidence resulting from use of the expired tracking warrants should have
been suppressed as fruit of a poisonous tree, Pickens argues, and therefore it was error
to deny his motion for acquittal because the government’s other evidence was
insufficient to convict. Two other claims on appeal -- prosecutorial misconduct and
jury instruction error -- presume the alleged invalidity of the tracking warrants. His
final argument, ineffective assistance of trial counsel, is not appropriate for review
on direct appeal.
We apply the deferential sufficiency-of-the-evidence standard to the denial of
a post-verdict motion for judgment of acquittal, and we review the denial of a motion
for new trial for abuse of discretion. See, e.g., United States v. Broeker, 27 F.4th
1331, 1335 (8th Cir. 2022) (standards of review). We affirm.
I. Background and Procedural History
A. Tracking Warrants and Pickens’s Trips to Chicago. On October 5,
2019, St. Paul Patrol Commander Salim Omari suspected that Pickens was involved
in a recent murder being investigated. Omari applied for state court warrants to track
two cell phones he had reason to believe belonged to Pickens. In supporting
affidavits, Omari explained why he believed Pickens might be involved in the murder,
averred that Pickens had an outstanding misdemeanor warrant, and explained that
“the information in [these] tracking warrant[s] will assist in the ongoing investigation
to the whereabouts of Pickens, so he can be located and arrested for his warrant and
be interviewed in relation to the murder.” The state court issued both warrants for the
lesser of (1) a 60-day period starting on October 5, or (2) “the period necessary to
achieve the objective of the [warrant] authorization.”
-2-
Two days later, St. Paul police arrested Pickens on the outstanding warrant.
Officers interviewed Pickens about the murder and obtained a warrant to search three
cell phones recovered at the time of his arrest. A search of the phones revealed a
photo of Pickens alongside what appeared to be three “bricks” of narcotics. The
police released Pickens that day but continued to monitor his location. Tracking data
showed that Pickens made a short trip to Chicago on October 11. On the night of
October 31, he made a second trip to Chicago, staying only a few hours before
driving back to the Twin Cities. Based on this tracking data and the photo, officers
suspected that Pickens was transporting narcotics. They decided to conduct an
investigatory stop when he arrived in the Twin Cities.
At 9:00 a.m. on the morning of November 1, law enforcement attempted the
investigatory stop when Pickens returned to St. Paul, driving a rental car. Pickens
pulled to the side of the road, then fled the scene, leading police on a four-minute
high-speed chase in which he ran stop signs and red lights and crashed into a house’s
staircase while maneuvering around a school bus. The chase ended when officers
conducted a PIT maneuver. In total, Pickens caused over $21,000 in damage to
police vehicles. In searching his vehicle after the chase, officers found six bricks of
cocaine under the driver’s seat and a middle row of seats. Later that day, they
obtained warrants to search the apartment of Ashley Clark, the mother of Pickens’s
child, and the cell phone in Pickens’s possession at the time of his arrest. Officer
Jeffrey Schwab averred in his application for the apartment search warrant that
officers learned about Pickens’s second trip to Chicago when they “continued to
receive and monitor phone pings for Pickens’s known cell phone” after his October
7 arrest. The apartment search uncovered loaded firearms, ammunition and
magazines, marijuana, and $58,000 in cash found in a bedroom along with other items
belonging to Pickens. Clark denied the cash and firearms were hers.
B. Pretrial Motions. After indictment, Pickens moved to suppress “the fruits
that law enforcement attained when they exceed[ed] the scope of a warrant.” In a
brief filed after the motion hearing, Pickens argued that a hearing under Franks v.
-3-
Delaware, 438 U.S. 154 (1978), was needed because Commander Omari’s supporting
affidavits for the tracking warrants stated that their purpose was only to locate and
arrest Pickens for his misdemeanor warrant and interview him in relation to the
murder, whereas officers continued tracking Pickens after his October 7 arrest and
interview, meaning that Commander Omari’s stated purpose was deliberately or
recklessly false or misleading. Pickens argued “there was one initial warrant that was
issued, which led to three other additional warrants that were issued . . . [resulting in]
illegal information that was obtained.” He further argued the November 1 search
warrants were not supported by probable cause, were overly broad, and the good-faith
exception in United States v. Leon, 468 U.S. 897 (1984), did not apply.
The district court adopted the magistrate judge’s2 Report and Recommendation
and denied both motions. It denied a Franks hearing because Pickens failed to show
that Commander Omari’s statements about the purpose of the tracking warrants were
false or misleading at the time that they were made, or even that they were necessary
to the issuing court’s finding of probable cause. The court agreed with the magistrate
judge that the October 5 tracking warrants were supported by probable cause in
Omari’s detailed supporting affidavits, that there was no evidence of false statements
in the affidavits supporting the November 1 warrants, and that the Leon good-faith
exception applied to all the warrants.
C. Trial. During Pickens’s three-day jury trial, the government referenced the
October 5 tracking warrants in its case-in-chief. In its opening statement, the
government said it would prove Pickens “ran drugs from Chicago to Minnesota” on
November 1 “because they were tracking his cell phone. They had . . . a warrant to
do that.” The government’s second witness, Sergeant Scott Schneider, who
conducted the PIT maneuver that ended the November 1 police chase, testified that
law enforcement located Pickens that morning by “pinging his cell phone.” Asked
2
The Honorable Becky R. Thorson, United States Magistrate Judge for the
District of Minnesota.
-4-
if “law enforcement has to get a warrant to do that,” Sergeant Schneider responded,
“Yes.” After the first day of trial, defense counsel expressed concern the jury might
infer the October 5 warrants were “obtained for tracking Mr. Pickens for drug
trafficking.” The district court responded, “If you think there’s some curative
instruction later on, it might be that I would consider that.”
On the second day, Commander Omari testified that he was monitoring the
location of Pickens’s phones before the November 1 arrest after the state district court
approved his request for “a tracking warrant to get GPS ping locations for Mr.
Pickens’s phone devices.” In closing argument on the third day, the government
emphasized that “ping signals” showed Pickens made a short trip to Chicago on
October 31. Before jury deliberations, defense counsel requested the curative
instruction the district court had invited. The court proposed an instruction that stated
in relevant part, “You are instructed that the [tracking] warrant was lawfully obtained
in an unrelated investigation.” Defense counsel stated he could “live with” that
instruction; the court included it in its final instructions.
D. Post-Trial Motions and Appeal. In post-verdict motions, new defense
counsel argued for the first time that the tracking warrants expired on October 7, after
Pickens was released, that continued tracking violated the Fourth Amendment, and
therefore all evidence obtained as a result of that tracking, including evidence found
in his vehicle on November 1 and in executing the later search warrants, should be
suppressed as fruit of a poisonous tree. Relatedly, Pickens argued the government
committed misconduct when it failed to correct Sergeant Schneider and Commander
Omari’s “false testimony regarding the validity of the tracking warrants;” that the
curative jury instruction improperly misled the jury to believe officers had a valid
warrant to track Pickens’s location; and that trial counsel was ineffective for failing
to object to evidence about the tracking warrants and to the curative instruction.
The district court denied Pickens’s motions. Regarding the primary Fourth
Amendment argument, the court concluded that Pickens waived the expired tracking
-5-
warrant issue by failing to show good cause for not raising it in a pretrial motion, as
Federal Rule of Criminal Procedure 12(b)(3)(C) requires. Alternatively, the court
held that Pickens’s flight from the police on November 1 provided an independent
basis for his arrest and the search of his vehicle. The court rejected Pickens’s claim
of prosecutorial misconduct because “no witness at trial testified that the warrants
were valid.” It rejected the jury instruction challenge because, in the context of the
entire trial, “the instruction was given to emphasize that the warrant was obtained in
an unrelated investigation.” Moreover, “any error would have been harmless” given
the overwhelming evidence against Pickens. Finally, the court dismissed the
ineffective assistance claim without prejudice because “the record has not [yet] been
adequately developed on the issue.”
II. Fourth Amendment Issues
Although Pickens filed a pretrial motion to suppress, raising other Fourth
Amendment issues, he first argued that the tracking warrants had expired and were
therefore invalid in his post-trial motions. Criminal Rule 12(b)(3)(C) requires that
a motion to suppress evidence “be raised by pretrial motion if the basis of the motion
is then reasonably available and the motion can be determined without a trial on the
merits.” If a party does not meet the district court’s deadline for filing a pretrial
motion, it is “untimely” but the court “may consider” the defense or objection “if the
party shows good cause.” Fed. R. Crim. P. 12(c)(3).
It is undisputed that the Fourth Amendment argument at issue -- whether the
government could rely on expired tracking warrants in opposing suppression -- was
an issue reasonably available for a pretrial motion to suppress that Pickens did not
raise. His initial motion asking for a Franks hearing addressing other tracking
warrant issues did not preserve this Fourth Amendment issue. See, e.g., United States
v. Green, 691 F.3d 960, 965 (8th Cir. 2012). Thus, his post-verdict suppression
motion was untimely under Rule 12. Though he made no attempt to show good cause
-6-
for his untimeliness in either the post-trial motions or his briefs to this Court, Pickens
argues the issue is reviewable for plain error.
Whether this issue is waived, or whether plain-error review is available, is an
unsettled question in our circuit. The pre-2014 version of Criminal Rule 12 expressly
provided that a party “waives” a 12(b)(3) argument by failing to show good cause for
not raising it in a pretrial motion. Fed. R. Crim. P. 12(e) (2013). We enforced this
provision as precluding appellate review. See Green, 691 F.3d at 963-65, applying
Davis v. United States, 411 U.S. 233, 242-43 (1973). In 2014, the Advisory
Committee removed Rule 12(e)’s reference to “waiver,” which can be read as opening
the door for plain-error review under Criminal Rule 52(b) and United States v. Olano,
507 U.S. 725, 733-34 (1993). In some recent cases, we have assumed without
deciding that plain error view is available. See United States v. Hill, 8 F.4th 757, 760
(8th Cir. 2021); United States v. Bernhardt, 903 F.3d 818, 824 (8th Cir. 2018). In
other cases, we have continued to apply the waiver rule without discussing the 2014
amendment. See United States v. LeBeau, 867 F.3d 960, 973 (8th Cir. 2017); United
States v. Cooke, 853 F.3d 464, 474 (8th Cir. 2017).
In our view, waiver continues to be the proper answer. If a suppression issue
is raised and determined before trial, the trial goes forward with the government
introducing whatever evidence is not suppressed. Here, the trial went forward with
evidence Pickens now claims should have been suppressed, and the remedy he
requests for his untimeliness is an acquittal! In Davis, the Supreme Court rejected
plain-error review in an analogous 28 U.S.C. § 2255 context, noting that “[s]trong
tactical considerations would [otherwise] militate in favor of delaying the raising of
the claim in hopes of an acquittal, with the thought that if those hopes did not
materialize, the claim could be used to upset an otherwise valid conviction.” 411
U.S. at 241. However, as our prior cases are inconsistent on this issue, we will
alternatively review for plain error.
-7-
To succeed on plain-error review, Pickens “must show an obvious error that
affected his substantial rights and seriously affected the fairness, integrity, or public
reputation of judicial proceedings.” Bernhardt, 903 F.3d at 824 (citing Olano, 507
U.S. at 732). We see nothing here that seriously affected the fairness or integrity of
this prosecution. Indeed, we find it hard to imagine a result that is more at odds with
“the fairness, integrity, or public reputation of judicial proceedings,” Olano, 507 U.S.
at 732, than rewarding Pickens with an acquittal or new trial for untimely raising new
fact-intensive suppression arguments the government had no opportunity to contest.
In addition, we agree with the district court there was no plain error. Whether
the tracking warrants expired when Pickens was arrested, interviewed, and released
on October 7 is an issue we do not decide. But it is hardly free from doubt, so any
error in not reaching the issue was not plain. Moreover, Pickens fled when the police
attempted to stop him on November 1, leading them on a hazardous high-speed chase
that provided probable cause to arrest Pickens for resisting arrest, failing to stop after
a collision, and reckless driving. See Minn. Stat. §§ 609.487, subd. 3; 169.09, subd.
2; and 169.13, subd. 1(a). Resistance to even an illegal stop or arrest can furnish
grounds for a legitimate arrest. United States v. Sledge, 460 F.3d 963, 966 (8th Cir.
2006). Here, there was no stop or arrest before Pickens fled. Finally, Pickens’s
flight, combined with a lawfully-obtained photo showing him with “bricks” of
narcotics, provided at least arguable probable cause to conduct a warrantless search
of his vehicle pursuant to the Fourth Amendment “automobile exception.” See, e.g.,
United States v. Mayo, 627 F.3d 709, 713-14 (8th Cir. 2010). For these reasons, we
affirm the district court’s denial of Pickens’s motion for judgment of acquittal or a
new trial based on the alleged expiration of the tracking warrants.
III. The Prosecutorial Misconduct Issue
Pickens next argues that the government knowingly obtained his conviction
through the use of false testimony when Commander Omari testified that the
November 1 search warrants were valid when those warrants were based on
-8-
information gathered from an expired tracking warrant. “To establish a due process
violation based on the prosecutorial use of false testimony, a defendant must show
that (1) the prosecution used perjured testimony; (2) the prosecution should have
known or actually knew of the perjury; and (3) there was a reasonable likelihood that
the perjured testimony could have affected the jury’s verdict.” United States v. Bass,
478 F.3d 948, 951 (8th Cir. 2007) (quotation omitted). “To show that [Omari]
committed perjury, [Pickens] must show that [Omari] provided false testimony
concerning a matter with the willful intent to provide false testimony, rather than as
a result of confusion, mistake, or faulty memory.” United States v. Espinoza, 684
F.3d 766, 780 (8th Cir. 2012) (quotation omitted).
This contention is without merit for multiple reasons. First, as the district court
noted, “no witness at trial testified that the warrants were valid.” Commander Omari
testified that he applied to state court for tracking warrants, the warrants issued, and
they were used both to track Pickens’s location and as background in obtaining the
November 1 search warrants that resulted in seizing additional evidence. Omari and
the government’s other law enforcement witnesses did not need to address and did
not address the validity of the tracking or the November 1 search warrants. Law
enforcement is entitled to presume that warrants issued by a neutral magistrate are
valid. Nor was Omari questioned about whether the tracking warrants expired when
Pickens was released on October 7. Finally, perhaps most importantly, this due
process claim requires a showing, completely absent here, of the government’s
knowing use of perjured testimony, testimony offered by a witness with the “willful
intent to provide false testimony, rather than as a result of confusion, mistake, or
faulty memory.” Espinoza, 684 F.3d at 780 (quotation omitted).
IV. The Jury Instruction Issue
Jury Instruction Number 9, the district court’s curative instruction addressing
the tracking warrants, instructed the jury:
-9-
You have heard testimony about a tracking warrant for the Defendant’s
cell phone. You are instructed that the warrant was lawfully obtained in
an unrelated investigation.
In his post-trial motions, Pickens argued this instruction improperly misled the jury
into believing that law enforcement had valid warrants to track him after October 7.
The district court rejected this argument on its merits. We agree, but we need not even
reach the merits because the instruction’s reference to “an unrelated investigation”
addressed a concern that Pickens’s trial counsel initially raised. Counsel later
requested a curative instruction and then agreed he could “live with” the instruction
proposed by the district court. When a defendant has “requested an instruction that
included the language he now objects to . . . his objection is therefore waived.” United
States v. DeFoggi, 839 F.3d 701, 713 (8th Cir. 2016); see United States v. Davis, 826
F.3d 1078, 1082 (8th Cir. 2016) (“[T]he doctrine of invited error applies.”).
V. Ineffective Assistance of Trial Counsel
Finally, Pickens argues his trial counsel provided ineffective assistance for
mishandling the tracking warrants issues. We review claims of ineffective assistance
of trial counsel on direct appeal only in “exceptional cases” where “the relevant factual
record has been fully developed, a failure to consider the claim on direct appeal would
constitute a plain miscarriage of justice, or the alleged error of trial counsel is readily
apparent.” United States v. Sanchez-Gonzalez, 643 F.3d 626, 628-29 (8th Cir. 2011)
(cleaned up). Here, we agree with the district court that “the record has not been
adequately developed on the issue.”
VI. Conclusion
The judgment of the district court is affirmed. We deny as moot appointed
counsel’s motion to withdraw.
______________________________
-10-