United States v. Philip Morris

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 9, 2018
• Docket: 17-30041
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 09 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT1

UNITED STATES OF AMERICA, No. 17-30041

Plaintiff-Appellee, D.C. No. 1:15-cr-00014-SPW-1 v.

PHILIP ALLAN MORRIS, MEMORANDUM

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Argued and Submitted March 6, 2018 Seattle, Washington

Before: RAWLINSON and CHRISTEN, Circuit Judges, and BENCIVENGO,** District Judge.

Defendant–Appellant Philip Allan Morris appeals the district court’s denials

of his motion to dismiss the indictment and his motion to suppress evidence. We

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Cathy Ann Bencivengo, United States District Judge for the Southern District of California, sitting by designation. have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. Morris argues the 21-month delay between his federal indictment and

trial violated his constitutional right to a speedy trial. “We review a district court’s

denial of a speedy trial claim de novo, although factual determinations underlying

the decision are reviewed for clear error.” United States v. Alexander, 817 F.3d

1178, 1181 (9th Cir. 2016) (internal citation omitted). We consider four factors in

deciding whether the speedy trial right has been violated: (1) length of the delay;

(2) reason for the delay; (3) the defendant’s assertion of the right; and (4) prejudice

resulting from the delay. Barker v. Wingo, 407 U.S. 514, 530 (1972).

The length of the delay is both a threshold issue and a part of the balancing

analysis. See, e.g., United States v. Gregory, 322 F.3d 1157, 1162 (9th Cir. 2003).

Here, the 21-month delay is sufficient to trigger the Barker analysis but weighs

only modestly against the government. Id.

The reason for the delay is examined in light of the government’s

“reasonable diligence.” United States v. Mendoza, 530 F.3d 758, 763 (9th Cir.

2008) (internal citation omitted). Some reasons weigh more heavily than others:

“A deliberate attempt to delay the trial in order to hamper the defense should be

weighted heavily against the government,” while “neutral reason[s] . . . should be

weighted less heavily” against the government. Barker, 407 U.S. at 531.

2 Here, the district court found: (1) the delay from February 2015 to April

2015 was attributable to Morris fleeing the state; (2) the delay from April 2015 to

March 2016 was attributable to Montana’s prosecution of Morris; and (3) the delay

from March 2016 until trial was attributable to Morris because he moved to

continue the trial four times. We conclude the district court did not commit clear

error in finding the first and third periods of delay were attributable to Morris.

Even assuming the other 11 months of delay weigh against the government, that

period would be balanced against the 10 months attributable to Morris. The second

Barker factor weighs only slightly in Morris’s favor.

The third Barker factor is the defendant’s assertion of his right to a speedy

trial. Because Morris asserted his right to a speedy trial only after five months had

passed and three continuances had been granted, this factor does not weigh in favor

of either party. See United States v. Corona-Verbera, 509 F.3d 1105, 1116 (9th

Cir. 2007).

The final Barker factor is prejudice. The 21-month delay here “is not long

enough to excuse [Morris] from demonstrating actual prejudice to prevail on his

claim.” Gregory, 322 F.3d at 1163. Morris must demonstrate actual prejudice to

prevail on his Sixth Amendment speedy trial claim, but he fails to do so.

Morris first argues the damaged recordings impaired his defense. Police

3 witnesses testified the recording equipment was malfunctioning at the time the

recordings were made. Because Morris presented no evidence to the contrary, he

did not show prejudice. Morris also contends the passage of time hampered

witnesses’ ability to remember specific details, but he fails to explain how any

memory lapses actually impaired his defense. Morris also suggests that the federal

government obtained a tactical advantage by delaying its prosecution until the

wayward search warrant was returned. However, the delay did not compromise

Morris’s ability to challenge the validity of the warrant; he did exactly that through

his motion to suppress. Any prejudice potentially caused by the warrant’s absence

was cured upon its return. Finally, Morris claims he suffered anxiety and distress

upon learning of his federal charges. This is unavailing because Morris was not a

victim of oppressive pretrial incarceration and his defense was not impaired as a

result of the delay. Balanced against the other Barker factors—none of which

weigh strongly in Morris’s favor—we conclude Morris’s emotional distress is

insufficient to show prejudice.

2. Morris challenges the search warrant for his truck on two grounds. First,

relying on Franks v. Delaware, 438 U.S. 154 (1978), Morris alleges the application

omitted six facts and misstated another relevant fact with intentional or reckless

disregard for the truth. Morris also argues state law enforcement did not comply

4 with Fed. R. Crim. P. 41.

To prevail on a Franks challenge, the defendant must establish two things by

a preponderance of the evidence: (1) that the affiant officer intentionally or

recklessly made false or misleading statements or omissions in support of the

warrant; and (2) that at least one false or misleading statement or omission was

material, i.e., “necessary to finding probable cause.” United States v. Perkins, 850

F.3d 1109, 1116 (9th Cir. 2017) (quoting United States v. Martinez-Garcia, 397

F.3d 1205, 1214–15 (9th Cir. 2005)). Morris did not argue that the alleged

omissions or misstatements were material. “[O]n appeal, arguments not raised by a

party in its opening brief are deemed waived.” Oracle USA, Inc. v. Rimini Street,

Inc., 879 F.3d 948, 957 (9th Cir. 2018) (internal citation and quotation marks

omitted).

Finally, Morris argues that state law enforcement did not comply with Fed.

R. Crim. P. 41. But the Federal Rules apply only to searches that are “federal in

character.” United States v. Palmer, 3 F.3d 300, 303 (9th Cir. 1993). Because

Morris did not show that state law enforcement officials anticipated Morris would

be federally prosecuted at the time of the search, he did not show that the warrant

requirements of Fed. R. Crim. P. 41 apply. Id.

AFFIRMED.