United States v. Kevin Schultz

FILED

NOT FOR PUBLICATION AUG 09 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-10427

Plaintiff - Appellee, D.C. No. 2:09-cr-00248-LDG-RJJ- 1 v.

KEVIN RAY SCHULTZ, MEMORANDUM*

Defendant - Appellant.

Appeal from the United States District Court for the District of Nevada Lloyd D. George, Senior District Judge, Presiding

Argued and Submitted September 13, 2012 San Francisco, California

Before: WALLACE, GRABER, and BERZON, Circuit Judges.

Kevin Ray Schultz appeals from his conviction, arguing that the district

court erred in denying his motion to suppress evidence later introduced at his trial

for being a felon in possession of a firearm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 1. The district court did not clearly err in crediting Detective Giannone’s

testimony. At the hearing before the district court on Schultz’s motion to suppress,

Giannone testified to a “‘coherent and facially plausible…

concurring:

I write separately to emphasize that were our standard of review less deferential, I would have decided the first issue in this case differently. The record contains significant inconsistencies about the officers’ whereabouts at key moments during the surveillance operation. Those inconsistencies raise serious doubts about the credibility of the officers’ testimony, particularly that of Detective Giannone, the only officer to testify to having observed Schultz commit a traffic violation.

1. Giannone testified that he first saw Schultz commit a traffic violation at 9:13 pm at the intersection of Audrie Street and Tropicana Avenue. Giannone then testified that he lost Schultz near Ford Avenue and Las Vegas Boulevard just six minutes later, at 9:19 pm. As best I can tell, the two locations are more than five miles apart via city streets. 1 Given the officers’ stated goal of maintaining their “undercover capacity,” I am dubious that the police could have pursued Schultz for more than five miles — including through or near the Las Vegas Strip — at more than fifty miles per hour, at least without seeing Schultz commit additional moving violations along the way. But Schultz…

concurring:

While I fully join in the memorandum disposition, I write separately to express my concern with Judge Berzon’s concurrence.

It is clear that it is not our place as appellate judges to act as fact-finders. That makes sense because “[t]he trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise.” Anderson v. City of Bessemer City, 470 U.S. 564, 574 , 105 S.Ct. 1504 , 84 L.Ed.2d 518 (1985). That “expertise” exists here: we are reviewing factfinding and credibility determinations by a judge who has been doing so as a district judge for nearly three decades. It is for that reason that we review factual findings underlying the denial of a motion to suppress only for clear error. See United States v. Lynch, 437 F.3d 902, 912 (9th Cir.2006). In undertaking this review, we give special deference to the role of the trial court in making credibility determinations. See United States v. Has-wood, 350 F.3d 1024, 1028 (9th Cir.2003). When this is completed, our job (and our appellate expertise) is at an end.

I disagree with Judge Berzon’s effort to scour the excerpt of record we have before us on appeal to determine that a…

MEMORANDUM *

Kevin Ray Schultz appeals from his conviction, arguing that the district court erred in denying his motion to suppress evidence later introduced at his trial for being a felon in possession of a firearm.

1. The district court did not clearly err in crediting Detective Giannone’s testimony. At the hearing before the district court on Schultz’s motion to suppress, Giannone testified to a “ ‘coherent and facially plausible story ... not contradicted by extrinsic evidence,’ ” namely that he observed Schultz commit a traffic violation at the corner of Ford Avenue and Las Vegas Boulevard after having earlier observed him commit a different violation at the intersection of Audrie Street and Tropicana Avenue. See Rodriguez v. Holder, 683 F.3d 1164, 1172 (9th Cir.2012) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 575 , 105 S.Ct. 1504 , 84 L.Ed.2d 518 (1985)). Although there were some inconsistencies in Giannone’s testimony at the hearings before the magistrate judge and the district court, and between the two arrest reports that Giannone wrote, the district court adequately explained its decision to credit Giannone’s ultimate testimony regarding the principal…