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United States v. Rowe

United States Court of Appeals, Eighth Circuit

December 26, 2017

United States of America Plaintiff- Appellee
v.
Sharrod Juanel Rowe Defendant-Appellant

          Submitted: October 19, 2017

         Appeal from United States District Court for the District of Minnesota - St. Paul

          Before LOKEN, BEAM, and COLLOTON, Circuit Judges.

          BEAM, CIRCUIT JUDGE.

         Sharrod Juanel Rowe, who was convicted following a jury trial of conspiracy to distribute cocaine, challenges the district court's[1] pretrial denial of his motion to suppress as well as the court's later Guidelines calculation and resulting sentence. We affirm.

         I. BACKGROUND

         The genesis of this case is the stop of the vehicle Rowe was driving on November 30, 2014, in the Minneapolis area. Although discussing arguments at the outset may be unconventional, the source of the facts themselves are disputed in this case so we begin by addressing the legal arguments on the disputed factual issues. Rowe made his initial appearance on the same day the magistrate judge issued a report and recommendation denying motions to suppress of Rowe's previous codefendants. Thus, Rowe entered these proceedings after a hearing took place covering the stop and seizure. Rowe then moved on his own behalf to suppress evidence and statements related to the stop of the BMW.

         A hearing was held on Rowe's motion on January 13, 2016. During Rowe's hearing, the parties discussed whether the court could, or would, consider evidence and testimony adduced at the August 25, 2015, hearing held on the codefendants' motions.[2] Although Rowe's counsel initially agreed to the use of the August hearing testimony, and seemingly reiterated that intention more than once, both parties also asserted reluctance and objections to the magistrate judge at the January hearing regarding its use. The court intimated at one time early in the hearing that it would not rely upon the August testimony but ultimately appeared to maintain its intention to review testimony from the August suppression hearing involving the exact same stop. Accordingly, it was equivocal at best as to how, if at all, the August testimony would be used. At each hearing-August and January-the government offered only two witnesses. The officer who initiated the stop, Trooper Thul, testified at both hearings but different investigators offered the additional testimony-Officer Evans in August and Officer Biederman in January. As is evident from the report and recommendation of the magistrate judge on Rowe's motion to suppress, it did in fact reference evidence adduced at the August hearing.

         Rowe first claims that the magistrate judge and the district court violated his Due Process and Confrontation Clause rights by relying on evidence adduced at a prior hearing involving Rowe's codefendants without providing Rowe the opportunity to ask any questions or cross-examine any non-present witnesses. U.S. Const. amends. V, VI. The government responds first, that the district court did not in fact rely upon evidence adduced at the earlier hearing but rather only included the August hearing in its citation list as additional support. It claims the facts set forth by the court were adduced in their entirety during the January hearing-that the two hearings were essentially identical. Second, the government argues that even if the court relied in part on evidence from the August hearing, it was entitled to do so.

         Having thoroughly reviewed both hearing transcripts, we find that there were in fact some differences in the testimony adduced and the two hearings were not "identical" as the government claims. However, any facts recited by the district court that were solely adduced at the August hearing were not legally significant in the final analysis. Importantly, at both hearings, the government offered the search warrant and the two police videos of Rowe's stop, all of which provide extensive information regarding the investigation, the stop, and the ultimate search. The district court appropriately ruled upon the motion to suppress before it. Too, at Rowe's trial, both investigating officers-Evans and Biederman-testified.

         No matter the comparison of the evidence adduced at both hearings, it was not erroneous for the district court to review evidence adduced at the August hearing. Although denying the right to cross-examine a witness at trial "would be constitutional error of the first magnitude" in most instances, the right of confrontation is not absolute. United States v. Boyce, 797 F.2d 691, 692-93 (8th Cir. 1986) (quoting Brookhart v. Janis, 384 U.S. 1, 3 (1966)). Courts may consider hearsay evidence at suppression hearings and it is not uncommon for different officers to testify at these hearings in various capacities. United States v. Thompson, 533 F.3d 964, 969 (8th Cir. 2008) ("Although not admissible at trial, the district court may rely on hearsay evidence at a suppression hearing."). "[E]vidence consisting of the out-of-court statements of persons not testifying at trial may be admitted even though the defendant has no opportunity to either confront or cross-examine the declarants." Boyce, 797 F.2d at 693. Thus, had any of the facts solely adduced at the August hearing been legally significant in the court's analysis, the court did not err in relying on that testimony.

         Even though it was not erroneous for the district court to rely upon evidence from the earlier hearing, we recite the facts limited to those known solely as a result of the testimony and exhibits admitted at Rowe's January hearing. Stated earlier, any factual differences between the two hearings that were allegedly relied upon by the district court were not legally significant, but we limit our recitation only to the January hearing to make that readily apparent.

         In the fall of 2014, a confidential informant (CI) who had for years provided accurate, timely and verifiable information to the police, informed Minneapolis police that Houston Oliver was coordinating the shipment of cocaine from Arizona to Minneapolis via two-day priority mail. He stated that the cocaine would be packaged in silverware boxes from a particular post office in Maricopa, Arizona. Minneapolis police, along with the cooperation of the Minneapolis postal inspector, successfully intercepted a shipment of cocaine mailed from Arizona to Minnesota based upon this information. The CI implicated three individuals in the shipment of the cocaine, one of whom cooperated with the police following the interception of the package. This man confirmed his role in the scheme, and confirmed the information provided by the CI regarding the packaging and shipment of the drugs, and the names of the two others involved. Rowe was not named at that time.

         The CI additionally told officers that Oliver was going to transport a large quantity of cocaine from Arizona to Minnesota in a gray BMW with Minnesota license plates on November 30. The CI provided the approximate arrival time but did not know the identity of the person transporting the cocaine. A subsequent records check revealed that Oliver was the registered owner of a 2002 BMW 745Li with Minnesota license plates, just as the CI stated. Sergeant Biederman of the Minneapolis Police Department worked on this case with the mail information and again when the ...


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