United States v. Trent Howard

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 17, 2023
• Docket: 22-30012
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 17 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-30012

Plaintiff-Appellee, D.C. No. 4:19-CR-06036-SMJ

v. MEMORANDUM* TRENT DREXEL HOWARD,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Salvador Mendoza, Jr., District Judge, Presiding

Submitted March 27, 2023** Seattle, Washington

Before: NGUYEN and HURWITZ, Circuit Judges, and EZRA,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. Trent Howard was convicted on child pornography charges. He argues that

the district court erred by denying his motion to dismiss for violation of his Sixth

Amendment right to a speedy trial and his motion to suppress evidence seized in a

search of his residence pursuant to a search warrant. We have jurisdiction under

28 U.S.C. § 1291 and affirm.

1. Howard was indicted on June 18, 2019, while he was on a work

assignment in Kazakhstan. When Howard did not return to the United States as

scheduled, the government instituted its first-ever criminal extradition request to

Kazakhstan. Extradition was not approved until August 14, 2020, during the peak

of the COVID-19 pandemic, and Howard, who had appealed the initial order

granting extradition, returned to the United States on November 11, 2020. His trial

was originally scheduled for October 4, 2021.

Howard contends that the delay between indictment and the trial date

violated the Sixth Amendment’s speedy trial guarantee. We hold that the district

court, applying the Barker factors, correctly found no Sixth Amendment violation.

See Barker v. Wingo, 407 U.S. 514, 530 (1972).

a. The first Barker factor is the length of the delay. Delays approaching one

year are presumptively prejudicial. See United States v. Gregory, 322 F.3d 1157,

1161–62 (9th Cir. 2003). Here, twenty-eight months elapsed between the

2 indictment and the scheduled trial date. The length of delay thus weighs in

Howard’s favor.

b. The second factor, the reason for the delay, weighs in the government’s

favor. The district court held that the government acted reasonably during the

pretrial period. Howard failed to return voluntarily, forcing the government to

resort to extradition. Given the complexity of arranging an extradition from

Kazakhstan, a country with which the United States has no extradition treaty,

especially amid a global pandemic, ample evidence supports the district court’s

conclusion.

c. The third Barker factor, the timing of the defendant’s assertion of his

speedy trial right, weighs in favor of the government. Howard obtained American

counsel no later than June 27, 2019 and was aware of his indictment by September

14, 2019, but did not assert his speedy trial rights until June 10, 2020.

d. The fourth Barker factor, actual prejudice, weighs against Howard. We,

like the district court, are “sympathetic to the anxiety and concern [Howard] must

have suffered while detained in a foreign, non-English speaking jurisdiction during

a global pandemic.” See Barker, 407 U.S. at 532 (setting forth the interests of

defendants to consider in assessing prejudice). Nonetheless, we agree that Howard

“failed to make the requisite showing of actual prejudice” because he provided no

3 evidence that the pretrial incarceration impaired his ability to prepare a defense,

nor evidence that the incarceration was oppressive.

2. The district court also did not err by denying Howard’s motion to

suppress. It correctly found that several typographical errors in the affidavit

supporting the application for a warrant, while “sloppy,” did not affect the showing

of probable cause. The particularized description of the single-source pornography

downloads from Howard’s IP address was sufficient to establish probable cause.

See United States v. Schesso, 730 F.3d 1040, 1045–46 (9th Cir. 2013). Moreover,

the affiant’s observation, based on his experience in law enforcement, that child

pornography offenders typically retain the illicit materials for years provided

“good reason” to believe that the items to be seized would still be on the premises,

even though five months passed between the January 5, 2019 download and the

execution of the search warrant. United States v. Lacy, 119 F.3d 742, 745–46 (9th

Cir. 1997).

3. Finally, we affirm the district court’s denial of a Franks hearing. A

defendant seeking a Franks hearing must (1) allege specifically which portions of

the warrant affidavit are claimed to be false; (2) allege that the false statements or

omissions were deliberately or recklessly made; (3) make a detailed offer of proof,

including affidavits, to accompany the allegations; (4) challenge the veracity of

only the affiant; and (5) show that the challenged statements are necessary to find

4 probable cause. United States v. DiCesare, 765 F.2d 890, 894–95 (9th Cir. 1985).

Howard made only conclusory allegations that the typographical errors were

deliberate or reckless and did not adequately explain why excision of the errors

would defeat probable cause. See Franks v. Delaware, 438 U.S. 154, 156 (1978).

AFFIRMED.