United States v. Marvin Schultz

FILED
NOT FOR PUBLICATION DEC 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10505
Plaintiff - Appellee, D.C. No. 4:08-cr-01567-DCB-
BPV-1
v.
MARVIN RAY SCHULTZ, MEMORANDUM *
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 11-10086
Plaintiff - Appellee, D.C. No. 4:08-cr-01567-DCB-
BPV-2
v.
JASON STEPHEN WALLACE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted December 8, 2011
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: LUCERO,** CALLAHAN, and N.R. SMITH, Circuit Judges.
Marvin Schultz and Jason Wallace appeal from the district court’s order
denying their joint motion to suppress and subsequent conviction and sentencing.
We have jurisdiction under 28 U.S.C. § 1291. We reverse.
A district court cannot reject a magistrate judge’s credibility determinations
made in a magistrate judge’s recommendation on a motion to suppress without
conducting a de novo, live evidentiary hearing. United States v. Bergera, 512 F.2d
391, 392 (9th Cir. 1975). There is “no procedural burden on the defendant to
request that the district court take live testimony” in this circumstance. United
States v. Ridgeway, 300 F.3d 1153, 1157 (9th Cir. 2002). The district court’s
ruling, in rejecting the magistrate judge’s report “in its entirety,” rejects all
credibility determinations made by the magistrate judge. From a review of the
record, it seems that the magistrate judge made at least two credibility
determinations. He at least determined that Agent Winnecke’s testimony about
Saban’s Car Rental policy (conflicting with other police officers’ testimony) was
not truthful. He also questioned Agent Winnecke’s testimony about whether the
**
The Honorable Carlos F. Lucero, Circuit Judge for the Tenth Circuit,
sitting by designation.
2
length of time the defendants’ vehicle was parked in a store parking lot was really
suspicious. Therefore, based on Bergera, we remand this case to the district court
to conduct an evidentiary hearing before rejecting the magistrate judge’s credibility
determinations.1
At oral argument, Schultz requested that this court allow him to join in his
co-defendant’s argument regarding this issue, because he did not include the
argument in his briefs. This court “will not ordinarily consider matters on appeal
that are not specifically and distinctly argued in appellant’s opening brief.” United
States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992) (internal quotation marks
omitted). However, one exception to this rule is if a “failure to raise the issue did
not prejudice the defense of the opposing party.” Id.
Here, the Government clearly will not be prejudiced in its defense of this
due process issue, because it fully briefed the issue in its Answering Brief to
Wallace. See also United States v. Hanley, 190 F.3d 1017, 1029 n.4 (9th Cir.
1999) (allowing a defendant to join in an argument not raised in his opening brief
because “the issue is not defendant-specific and the [G]overnment will suffer no
1
We express no opinion as to the merits of defendants’ motion to suppress
the evidence. Rather, our decision is limited to the procedure the district court
must follow if it disagrees with the magistrate’s recommendation and rejects a
credibility determination.
3
resulting prejudice from our decision, as it has briefed the issue thoroughly”).
Thus, our disposition applies to both Schultz and Wallace.
REVERSED and REMANDED.
4