United States v. Powell

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 19, 2025
• Docket: 23-3096
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 19 2025 FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 23-3096

Plaintiff - Appellee, D.C. No. 4:21-cr-00290-BLW-1 v.

TRENTON JARED POWELL, MEMORANDUM*

Defendant - Appellant. *

Appeal from the United States District Court for the District of Idaho

B. Lynn Winmill, District Judge, Presiding

Argued and Submitted February 10, 2025 Seattle, Washington

Before: W. FLETCHER and NGUYEN, Circuit Judges, and BENNETT, District Judge.**

Defendant-Appellant Trenton Jared Powell was tried and convicted by a jury

trial of six counts of sexual exploitation of a child, two counts of attempted sexual

exploitation of a child, and three counts of receipt of child pornography. He

appeals from his conviction, arguing that the district court erred in (1) denying his

*

This disposition is not appropriate for publication and is not precedent except ** as provided by Ninth Circuit Rule 36-3. The Honorable Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. motion to suppress, (2) denying his counsel’s motion to withdraw, (3) admitting

evidence regarding other acts of sexual misconduct, and (4) excluding evidence

regarding the victim’s sexual behavior. We have jurisdiction under 28 U.S.C. §

1291, and we affirm.

1. Powell challenges the district court’s denial of his motion to suppress

based on two separate periods of delay: the six-day delay in obtaining a search

warrant following Powell’s arrest; and the seventy-one-day delay between the

issuance and execution of the search warrant. The district court correctly denied

the motion to suppress on both grounds.

To determine whether a delay between a seizure and the obtaining of a

search warrant is unreasonable, we “balance the nature and quality of the intrusion

of the individual’s Fourth Amendment interests against the importance of the

governmental interests alleged to justify the intrusion.” United States v. Place, 462

U.S. 696, 703 (1983). “The touchstone is reasonableness.” United States v.

Sullivan, 797 F.3d 623, 633 (9th Cir. 2015). The Supreme Court has found

reasonable “a temporary seizure that was supported by probable cause and was

designed to prevent the loss of evidence while the police diligently obtained a

warrant in a reasonable period.” Illinois v. McArthur, 531 U.S. 326, 334 (2001).

The parties do not dispute that Pocatello Police Department (“PPD”) had

probable cause to search Powell’s phone, or that the government reasonably feared

2 23-3096 the destruction or erasure of digital evidence upon the phone’s return. There is

also no indication that PPD made any unnecessary intrusions into Powell’s privacy

interests, given that the phone was locked and in airplane mode during the entire

period. We further do not find clearly erroneous the district court’s finding that

PPD worked with reasonable diligence in obtaining the warrant. “Even if the

government could have moved faster to obtain a search warrant, the government is

not required to pursue ‘the least intrusive course of action.’” Sullivan, 797 F.3d at

634 (quoting United States v. Hernandez, 313 F.3d 1206, 1213 (9th Cir. 2002)).

We therefore find the delay here to be reasonable “[u]nder the totality of the

circumstances.” United States v. Johnson, 875 F.3d 1265, 1276 (9th Cir. 2017).

Powell separately challenges the seventy-one days during which PPD had

possession of his phone pursuant to a valid warrant. We find this delay reasonable

in light of the fact that Powell’s model of iPhone had been released less than two

months prior to its seizure, and the government was anticipating updates to its

forensic software to be able to access the phone’s contents. Moreover, concerns of

staleness are not present here. Powell lacked any opportunity to modify the

contents of the phone until the search was executed. His phone was on airplane

mode and in PPD’s possession during the entire period of delay. See United States

v. Gann, 732 F.2d 714, 722 (9th Cir. 1984) (articulating the test for staleness as

“whether there is sufficient basis to believe . . . that the items to be seized are still

3 23-3096 on the premises”).

2. The district court did not abuse its discretion in denying Powell’s

counsel’s motion to withdraw. A trial court has “wide latitude in balancing the

right of counsel of choice against the needs of fairness, and against the demands of

its calendar.” United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006). The

motion to withdraw was filed four days before trial, and the court found that

appointing a new attorney would delay the trial by at least six months, threatening

both the public’s interest in a speedy trial and the victims’ interest in final

resolution of the case. The court also found that there were no countervailing

concerns regarding the defense’s readiness because Powell’s counsel represented

that they were fully prepared for trial.

3. The district court did not abuse its discretion in admitting the

testimonies of Jane Doe 1 (“JD1”) and Minor Victim 1 (“MV1”) with respect to

Powell’s other past acts of sexual misconduct. We have held that “other act”

evidence is admissible under Federal Rule of Evidence 404(b) if “(1) the evidence

tends to prove a material point; (2) the other act is not too remote in time; (3) the

evidence is sufficient to support a finding that defendant committed the other act;

and (4) . . . the act is similar to the offense charged.” United States v. Romero, 282

F.3d 683, 688 (9th Cir. 2002) (quoting United States v. Chea, 231 F.3d 531, 534

(9th Cir. 2000)). All four conditions are met here.

4 23-3096 Both JD1 and MV1 testified that Powell groomed them as young children

and recorded visual images of their sexual contact on his phone. This grooming

conduct was not part of the charged conduct, but their testimony concerning the

conduct was nonetheless admissible. It was material in proving Powell’s intent,

motive, and identity with respect to his charged offenses, and the acts were

sufficiently similar to the charged conduct. See United States v. Johnson, 132 F.3d

1279, 1283 (9th Cir. 1997) (finding that “past conduct need not be identical to the

conduct charged, but instead need only be similar enough to be probative of

intent”). These acts all took place within three years of the charged offenses.

Finally, we have held that witness testimony “satisfies the low-threshold test of

sufficient evidence for the purposes of Rule 404(b).” United States v. Dhingra,

371 F.3d 557, 566 (9th Cir. 2004).

4. The district court did not abuse its discretion in excluding JD1’s

boyfriend’s potential testimony that he had engaged in oral sex with JD1. Federal

Rule of Evidence 412 prohibits the use of “evidence offered to prove that a victim

engaged in other sexual behavior.” Fed. R. Evid. 412(a)(1). Powell argues that the

boyfriend’s testimony is nevertheless admissible because it would have impeached

JD1’s testimony and thus falls under the exception of “evidence whose exclusion

would violate the defendant’s constitutional rights.” Id. 412(b)(1)(C). We need

not reach this issue, however, because Powell failed to make a timely motion to

5 23-3096 admit the testimony under Rule 412(c)(1)(B).

AFFIRMED.

6 23-3096