Reversal of kidnapping conviction because of erroneous instructions; other claims rejected

United States v. Piette, 45 F.4th ---, 2022 WL 3452464 (10th Cir. August 18, 2022) (evidence; statute of limitations; jury instructions; and pro se/Faretta hearing) Apologies, I am unable to make a short version - too many issues that are fact dependent. Warning, this will not be amusing at all. We start in Springfield, Missouri in the early 1990s. Rosalynn McGinnis was eight years old, she lived with her parents and siblings. While at the playground the McGinnis children met the Piette children. They became friends; there were slumber parties and movie nights. And Mr. Piette molested Rosalynn. She did not tell anyone about it. One of Mr. Piette’s sons testifies about two specific instances he witnessed his father molest other girls and generally suggests he molested several children. Mr. Piette became close to Rosalynn’s mother, Gayla, and he told her about his religion, the Fundamentalist Church of Jesus Christ of the Latter-Day Saints. (Okay, it doesn’t say that it is his religion and it doesn’t specify that it was the disavowed weird fundamentalist sect of Warren Jeffs but it does say they talked about Mormonism.) Eventually, Mr. McGinnis and Gayla split and Mr. Piette becomes the patriarch. Under his rule, the family became very hierarchical with constant bible readings. (Again it sounded like Jeffs cult.) Mr. Piette used physical violence against the children and Gayla. At some point, someone noticed and the authorities got involved. But Mr. Piette convinced Gayla that she would be blamed so they ran and ran and ran – to Montana, Arizona, Utah, California, Texas, Oklahoma and Guatemala. The physical abuse accelerates and Mr. Piette rapes Rosalynn. Gayla escapes to her parents but Mr. Piette finds them and drags them back. Mr. Piette then “spiritually marries” Rosalynn who is 11 or 12. (Ahem, Warren Jeffs.) Gayla manages to escape with the kids again and Rosalynn attended a middle school. Mr. Piette tracks them down but only approaches Rosalynn; he tells her he is going to reunite their family. She leaves with one of Mr. Piette’s sons who drives her to Tulsa. The rest of Gayla’s family is not taken. Mr. Piette introduces her as his children’s new mother. (She’s still just 12.) They move about the country, and Mr. Piette changes her appearance. Relatively shortly, they decamp to Mexico because Rosalynn is pregnant (and Mr. Piette delivers the first one via C-section – I assume, the opinion just says “He used a pocketknife to deliver the baby on the floor of a van.”) She had eight (more) children over the next 16 years. The children and Rosalynn were beaten often and severely; he began sexually abusing his daughters from Rosalynn. Rosalynn suspected the sexual abuse. Mr. Piette threatens them all with death if they leave. Rosalynn (and her children) believed this was a credible threat. But just to make sure they stayed put, it was not infrequent that he chains Rosalynn to the bed or a pole. By 2016, Rosalynn saved $150 over years, buried in a hill, and when Mr. Piette is passed out managed to flee. She and the children made it to the embassy. So, the Government charges Mr. Piette with kidnapping and traveling with intent to engage in sexual relations with a juvenile for actions he took in the late 1990s. Evidence Issues The Government said the kidnapping went from January 1997 to July, 28 2016. Mr. Piette’s defense at trial was that at some point, Rosalynn was no longer being held against her will (which would mean the charge was untimely). The district court admitted the evidence of molestation of the daughters as res gestae evidence. Res gestae evidence “encompasses conduct ‘inextricably intertwined with the charged crime such that a witness’s testimony would have been confusing and incomplete without mention of the prior act’.” (No pinpoint cite available yet. I do not understand how they can say the case starts on x page but not have pinpoint cites to pages later in the opinion but they don’t.) Defense counsel argued that leaving out that evidence would not leave “analytical or temporal gaps in the government's case or left the jury confused” so it was not properly res gestae. The Tenth Circuit countered with even if the account sans molestation evidence made sense, “res gestae was still a valid ground for admission because the resulting testimony would have been ‘incomplete’ without [it].” Because Mr. Piette argued she stayed voluntarily and that evidence showed why/how she did not, it was relevant. But it still had to pass the 403 balancing test. Which the district court did not actually do…it just announced its conclusion the evidence was more prejudicial than probative. But this gets the defendant nothing. (Bad facts make bad law.) The Tenth Circuit declares “we may supplement the district court’s Rule 403 determination on appeal to assess whether its conclusion was an abuse of discretion.” Sigh. It then says the evidence was probative because it went to whether she consented to staying with him. The Court also stretches and says that “Jurors may have viewed Piette's later abuse of [Rosalynn’s] daughters as making it more likely he had the requisite intent when he traveled with [Rosalynn].” I think her testimony about he raped her three-times a day made the intent clear and that the Court’s reasoning sounds like propensity. But the first point the Court made was valid. The defense argued that the graphic testimony about the daughter’s molestation (which I spared you, you are welcome) was too prejudicial; the Court countered with yeah, the jury already heard about what he did to his “preteen stepdaughter-wife” (their words) so learning that he also molested his daughters probably wasn’t going to change their opinion much. Even though the jury heard about two specific instances of molestation of other girls before leaving Springfield, the defense only challenges one. The Court says it could be 404b or 414 evidence. The Court doesn’t actually apply these rules, instead skipping straight to harmless error. (Which suggests that maybe they do think it wasn’t admissible but…) In general, I think harmless error is an oxymoron but here I have to agree with the Court’s analysis. Essentially, they say given how much evidence the jury heard from actual victims, the jury probably didn’t even remember this one incident relayed by his son. Statute of Limitations So when Piette ran off with his preteen-stepdaughter-spiritual-wife in 1997, the statute of limitations for the traveling charge ran when the child turned 25. Rosalynn would have turned 25 in 2009. But Congress amended the statute in 2003 so that the statute of limitations was the life of the child. In 2006, they amend it again so that there is no statute of limitation. Mr. Piette maintains that the statute of limitations ran in 2005. According to Mr. Piette, these enactments had an impermissible retroactive effect. A retroactive statute is one that takes away or impairs vested rights acquired under the existing law, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past. Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37 (2006). It is “a rule of general application that a statute shall not be given retroactive effect unless such construction is required by explicit language or by necessary implication.” Id. The key in Mr. Piette’s case is that the statute of limitations never actually ran for his actions; i.e. the amended statute of limitations merely extended, as opposed to revived, a charging period. The Tenth Circuit acknowledges it would be different if the child had turned 25 before the 2003 amendment. Jury Instructions – Kidnapping (a rare win on plain error). Recall that Mr. Piette contended that Rosalynn was, at some point, not held against her will. Unlike most affirmative defenses, the burden of proof on a statute of limitations defense (as this is) reverts to the government. The jury instructions said that Mr. Piette had to prove that she was not held against her will by a preponderance of the evidence. This is error and it is plain. Because the error went to a principal element of the defense it affected his substantial rights. Finally, “[i]n light of the revered status of the beyond-a-reasonable-doubt standard in our criminal jurisprudence, a jury instruction that allows a conviction where one important element may not have been found against the defendant by such a standard cannot be overlooked.” United States v. Duran, 133 F.3d 1324, 1334 (10th Cir. 1998). So, the kidnapping conviction is vacated. Pro-Se & Faretta hearing at sentencing Mr. Piette contends he wanted to represent himself at sentencing. Mr. Piette wrote the district court a lot of letters and pleadings. The Tenth Circuit agreed with the government that there was not “a clear and unequivocal request to proceed pro se because of his ‘prolific and varied correspondence with the district court,’ which alternated between praising and lambasting his attorney.” Also, according to the Tenth Circuit it was also not clear that he wanted to proceed pro se or have his poor attorney withdraw and have new counsel appointed. Lastly, in a colloquy with the court, Mr. Piette agreed that his attorney would withdraw post-sentencing. Therefore, no Faretta hearing was necessary because it wasn’t clear Mr. Piette wanted to represent himself, rather than have new counsel.

Remand for resentencing after district court erred in determining drug quantity; prior OK convictions were overbroad and not ACCA predicates

US v. Williams, --- F.4th ----, 2022 WL 4102823 (10th Cir. Sept. 8, 2022): The defendant wins on two sentencing arguments. Remanded for resentencing. Defendant pled guilty to one count of possession with intent to distribute methamphetamine and one count of being a felon in possession of a firearm. On appeal, he contended that 1) the district court clearly erred in calculating the drug quantity and the error was not harmless and 2) he was not ACCA-eligible because his prior Oklahoma convictions for distributing a controlled dangerous substance were not serious drug offenses under ACCA. The Tenth Circuit agreed. Background: San Bernardino, CA, is a “known source area of controlled substances” and when Mr. Williams in Oklahoma City received some packages from San Berdo and the sender/recipient names were not associated with the listed addresses, well, that was suspicious. After a couple of deliveries, Mr. Williams’ residence was searched and they found one package, one empty package, two scales, a heat sealer, a surveillance system, and a loaded revolver. (Side thought: given the ubiquity of Ring and similar systems, is having a surveillance system really suspicious?) Back to the story: The PSR calculated Mr. Williams’ drug quantity based on the seized package of methamphetamine actually found in the house, plus three more, estimating that those packages also contained meth. It declined to include 7 other packages allegedly sent to Williams. The government conceded that, at sentencing, it did not put on any evidence regarding those three packages, but it introduced evidence about 8 allegedly similar packages delivered from San Bernardino and a ninth package sent from Loma Linda, CA. Over Mr. Williams’ objection, the district court held him responsible for the quantity calculated in the PSR, resulting in a higher base offense level. Mr. Williams also objected to the ACCA determination, contending that his prior Oklahoma convictions were overbroad because they applied to hemp, which is not a federally controlled substance. The district court declined to consider the ACCA objection because it made no different to Mr. Williams’ guideline range. The district court decided Mr. Williams’ total offense level was 38 and his criminal history category was VI, resulting in a guideline range of 360 months to life. The court granted a downward variance and imposed concurrent sentences of 284 months on each count. Holdings: The Tenth Circuit held that the district court should not have relied on the three contested packages sent to his residence concerning which the government presented no evidence. The government contended that the evidence presented on the other packages was sufficient, but the Court declined to speculate on the sufficiency of this evidence and found that the government had failed to show harmless error, especially since the PSR had not included these packages in its calculations. It remanded for further findings on drug quantity. In a clearer victory, the Tenth Circuit agreed that Mr. Williams’ convictions from 1996, 1997 and 2003 were not ACCA predicates because the Oklahoma statute at that time covered hemp and hemp is not presently a controlled substance under federal law. “[W]e hold a defendant’s prior state conviction is not categorically a ‘serious drug offense’ under the ACCA if the prior offense included substances not federally controlled at the time of the instant federal offense.”

KS conviction for aggravated battery not a COV for guidelines purposes

US v. Adams, 40 F.4th 1162 (10th Cir. 2022) Mr. Adams’ sentence for unlawful possession of a firearm should not have been enhanced for having a prior crime of violence under USSG 2K2.1(a)(4). Mr. Adams had a prior conviction for aggravated battery under Kansas law. However, such a conviction does not qualify as a crime of violence because in Kansas an aggravated battery could stem from battery against a fetus, and the guidelines’ definition of a crime of violence doesn’t include battery against a fetus.

Dismissal of appellee's motion for sentence reduction reversed

US v. Price, 44 F.4th ----, 2022 WL 3440347 (10th Cir. 2022) The Tenth Circuit reverses the district court’s dismissal of the appellee’s motion for a sentence reduction pursuant to the First Step Act of 2018. The parties agreed that Mr. Price was eligible for a reduction because he was convicted of distribution of cocaine, but disagreed on whether he had standing to make such a request because, back in 1998, when Mr. Price was sentenced, the district court determined the length of his sentencing by cross-referencing to first-degree murder under the then mandatory guidelines. The Tenth Circuit concluded that the district court had discretion to reduce Mr. Price’s sentence because Mr. Price was convicted of violating a covered offense and sentenced to life by the cross-reference to a non-covered offense of which he was not actually convicted. Moreover, because there was no statutory minimum for the murder cross reference, the district court could apply the traditional sentencing factors in further proceedings.

Tenth agrees that 8 USC 1324(a)(1)(A)(iv) is unconstitutional

US v. Hernandez-Calvillo and US v. Papalotzi, 39 F.4th 1297 (10th Cir. July 13, 2022) Appellees were convicted of violating 8 U.S.C. sec. 1324(a)(1)(A)(iv), which makes it a crime to encourage or induce a noncitizen (used as equivalent to the term “alien”) to reside in the US, knowing or recklessly disregarding that such residence violates the law. The district court agreed with the appellees that the statute was overbroad under the First Amendment and dismissed the indictment. The Tenth Circuit affirmed. The statute’s plain language “targets protected speech,” “the proposed limiting instruction” by the government and dissent is not supported by the text or context, and “the statute criminalizes a substantial amount of constitutionally protected speech, creating a real danger that the statute will chill First Amendment expression.”

Obstruction of justice enhancement was unwarranted; other claims rejected

US v. Wells, No. 20-1228, 38 F.4th 1246 (10th Cir. July 6, 2022) The defense wins a remand for purposes of reconsidering the upward adjustment at sentencing for obstruction of justice, but loses all challenges to the conviction itself and his other sentencing claims. The defendant was charged with, and convicted after a jury trial of, aggravated sexual abuse, assault with intent to commit aggravated sexual abuse, assault resulting in serious bodily injury, and assault with a dangerous weapon following a horrific series of events in which defendant assaulted, raped and seriously injured his wife. The district court concluded that the defendant’s advisory guideline range was life in prison, but varied downward to 360 months imprisonment after analyzing the sentencing factors. Defendant first challenged two jury instructions. The Tenth Circuit concluded that the defendant had invited both errors by stipulating to the instructions. The Court rejected the defendant’s claim that the district court should have set aside his conviction under 18 U.S.C. sec. 113(a)(1) because (1) it was multiplicitous with his sec. 2241(a)(1) conviction and (2) sec. 113(a)(1) was so incomprehensible that a conviction under it violated due process. The Court found that the defendant failed to demonstrate plain error with regard to either argument. With regards to the first argument, an assault under sec. 113(a)(1) will not necessarily satisfy the force requirement of sec. 2241(a)(1), and 113(a)(1) is not plainly a lesser included offense of 2241(a)(1). The Court rejected the vagueness challenge on the grounds that the defendant’s assault against his wife was prolonged, involved, and brutal, and was clearly done with the specific intent to commit aggravated sexual abuse. The defendant challenged the admission of the testimony of the trauma doctor regarding the victim’s injuries and risk of death. The Tenth Circuit found no error in allowing the doctor’s testimony because the testimony met the requirement that it had “any tendency” to demonstrate that the victim suffered serious bodily injury within the meaning of sec. 1365(h)(3). The abduction enhancement was upheld because the defendant three times grabbed the victim by the hair as she was at the door to leave the house, and dragged her through the kitchen to a back bedroom. The enhancement for inflicting permanent or life-threatening bodily harm was upheld based on the trauma surgeon’s testimony. The Court emphasized that the applicability of the enhancement is “risk” based, as measured at the time of the assault, and thus the fact that the injury is ultimately cured is not relevant to assessing the enhancement. However, the Court agreed with the defense that the mere fact that the defendant violated a no-contact order by sending a letter to the victim did not trigger application of the obstruction of justice enhancement. Additionally, the district court erred by concluding that the letter was an attempt by the defendant to influence the victim’s testimony at the sentencing hearing or her right to obtain restitution; any such conclusion was speculation and not supported by the record.

To trigger court's Rule 32 fact-finding obligation, defendant must object to facts in the PSR as "untrue"

United States v. McDonald, 43 F.4th 1090 (10th Cir. 2022) (E.D.Ok.):The panel holds that the district court correctly relied on facts in the presentence report even though McDonald objected to certain facts as unreliable anduncorroborated. The panel said the district court’s duties to rule ondisputed facts as required by Fed. R. Crim. P. 32(i)(3) were not invoked because challenging information as unreliable or not credible is not that same as alleging the information is untrue. Only the latter claim forces the district court to make rulings. In other words, challenging the reliability and/or credibility of an allegation is not the same as saying it is factually inaccurate. An accused has “an affirmative duty to show [] the information in the PSR was unreliable and articulate the reasons why the facts contained therein were untrue or inaccurate.” The panel finds that the circuit’s unpublished case, United States v. Padilla, 793 Fed. App’x 749, 756 n. 4 (10th Cir. 2019) was incorrect.There the panel held that a challenge to the reliability of the government’s evidence in the PSR is sufficient to create a factual dispute and trigger the court’s Rule 32 fact-finding obligation. The McDonald panel said Padilla misinterpreted the published cases onwhich it relied. None of those cases had to decided whether a mere objection to the reliability of the evidence in the presentence report is sufficient to trigger a district court’s fact-finding obligation. The panel explained that “attacking a witness’s credibility or reliability is different than asserting that their statements or information are false.” And it is not enough to dispute inferences drawn from underlying facts or ultimate legal conclusions premised on those facts. Rule 32 is invoked only when objections dispute the underlying facts. Because McDonald challenged only the reliability and lack of corroboration of facts in the PSR, the district court did not err by relying on those facts in deciding whether certain sentencing guidelines enhancements applied. [Practice Tip: Arguably, it is it enough to say that the facts are untrue because the allegations used are uncorroborated or unreliable. Explaining why a statement is unreliable or needs corroboration probably would be helpful.] After dispensing with this procedural issue, the court summarily rejected all of McDonald’s arguments challenging the district court’s use of various guideline enhancements. Irrepsective of McDonald's unreliable and uncorroborated evidentiary arguments, the drug quantity enhancement was supported by the amounts found by law enforcement or described by co-conspirators as having been received from or supplied to McDonald. Similarly, enhancements for credible threat or use of force, obstruction of justice and aggravated role were proven by co-conspirator statements or recorded jail calls. Of note: the panel seemingly lowers the degree of proof necessary for the “organizer” enhancement in USSG § 3B1.1. There is “no requirement that the defendant organize multiple individuals; providing instructions to even one person regarding the criminal activity can satisfy this enhancement.” It doesn’t matter if the accused did not have any hierarchical control over other participants. If he “devised a criminal scheme, provided the wherewithal to accomplish a criminal objective, and coordinated and oversaw the implementation of the conspiracy,” then the enhancement can be applied.

Important suppression victory in search of backpack on a bus

United States v. Johnson, 43 F.4th 1100 (10th Cir. 2022) (NM): The panel finds that although the agent had probable cause to seize Johnson’s backpack, he did not have authority to reach in and feel objects contained therein. For that search and the one subsequent to it in the DEA office, he needed a warrant. The district court was wrong to rule it was a “foregone conclusion” the pack held contraband: The agent’s description of what he saw and felt during those searches did not prove it was a “virtual certainty” the bundle inside contained contraband. A detailed review of this opinion is necessary to appreciate all the favorable rulings made by this panel. (Of course, you can just read the case if it’s too much bother.) 1. Factual Background: A Greyhound bus pulls into Albuquerque for routine stop and service. Passengers are required to get off but when they get back on, there at the back of the bus is DEA Agent Perry and a task force colleague of his at the front. Perry says that Johnson had left his backpack on the window seat next to him.* While he was interrogating other passengers he noticed Johnson place the pack underneath the seat “which [he] perceived as an attempt to hide the bag.” When Perry got to Johnson’s seat he showed his badge and said he was a police officer. He asked Johnson about his travel plans and demanded to see his ticket. He then requested identification, which Johnson did not have. Perry asked Johnson if “he was traveling with luggage.”* He also asked if he had any underneath the bus or anything under his seat. Each time Johnson answered no. These denials indicated to Perry that Johnson was trying to “distance himself” from the backpack because it “possibly contained contraband.” Perry then asked to pat him down. Johnson agreed and Perry found nothing. Perry asked if the pack underneath the set next to Johnson’s was his. Johnson said it was and that he had clothing inside. Perry asked for Johnson’s permission to search it and according to the district court, Johnson responded, “Yeah, I’m doing it.” Johnson lifted the bag onto the seat next to him, opened it and rummaged through the contents. Conveniently, Perry labeled his actions as a “self-search,” which allowed him to suggest to the court that Johnson was trying to “conceal contraband and deflect officer concerns.” Perry also said Johnson had “angled his body to shield [his] view of the bag.” Still, Perry said he saw a “black oblong-shaped bundle protruding from some clothing.” Because of its “size, shape and concealment method,” Perry concluded that inside the bundle were illegal narcotics. He asked Johnson what was inside the bundle. Johnson did not answer, so Perry handcuffed him and turned him over to his colleague. After Johnson was off the bus, Perry felt the bundle. He described it as very hard, pretty large, with a “crinkling or kind of crushing feel.” What he discovered by feeling it confirmed in his mind that it contained illegal narcotics. Perry then took the pack back to the DEA office. There, he searched the pack again. He saw that the bundle was inside the leg of a pair of long underwear and that it was wrapped in tinfoil. He also found another bundle. He weighed both and the field test was positive for methamphetamine. Perry next interrogated Johnson. Johnson said he thought the pack held marijuana and he was being paid $500 for carrying it. In his motion to suppress, Johnson gave three grounds for excluding the methamphetamine and his statements. First, he was arrested and his pack was seized without probable cause. Second, the pack was searched without a warrant. Third, his statements were illicit fruits ofthe earlier constitutional violations whose taint the government could not eliminate. The district court ruled against him. Johnson himself filed a supplemental brief/motion to reconsider adding arguments and authorities to his initial motion. Later the court issued a more detailed order in which it concluded that Perry had probable cause to arrest Johnson and that it was a “foregone conclusion” that the backpack held contraband. The panel reversed the latter decision. 2. Probable Cause for Arrest & Seizure of Backpack: The panel agreed with the district court that there was probable cause of Johnson’sarrest. More interesting than its conclusion, is its analysis. It analyzed individually, the degree of suspicion to attach to each of the six factual basis on which the district court relied for its probable cause finding. After doing so, it then addressed whether “in their totality,these facts are enough for probable cause.” The panel concluded that in the aggregate they were, but noted that some facts though relevant, did not carry much weight (putting pack under seat, no identification, not answering question about what was inside bundle.). The panel’s approach isn’t novel but it does affirm our similar approach to reasonable suspicion and probable cause arguments (and rebuff the government's 'divide and conquer' criticism of these arguments). 3. Search Warrant Required to Inspect Backpack’s Contents: The panel then held that Perry illegally searched Johnson’s backpack when, while still on the bus, he reached inside and felt the bundle wrapped inclothing. In doing so, Perry “obtained information beyond what a fellow passenger might learn from touching or moving the bag in the ordinary course of travel.” Citing United States v. Nicholson, 144 F.3d 632, 636-39 (10th Cir. 1998), the panel emphasized that an officer performs a search whenever he touches a person’s belongings “in a manner that exceeds how a fellow passenger would.”* 4. Plain View did not excuse Perry’s illegal search: The government and the district court relied on plain view to justify Perry’s “probing tactile examination” of Johnson’s pack. The panel explained that the plain view exception applies only if (a) the officer was lawfully in a position from which the object seized was in plain view; (b) the object’s incriminating nature was immediately apparent; and (c) the officer had lawful right of access to the object. The panel said the “incriminating character” of the pack and bundle were “immediately apparent” to Perry. Therefore, he could “seize” the pack but he could not search it unless it was a “foregone conclusion” that its contents held contraband. The panel held the district court incorrectly ruled it was a “foregone conclusion” the pack did contain contraband. 5. A “foregone conclusion” requires proof to “a virtual certainty”: The panel stressed that the “foregone conclusion standard is high: It requires a ‘virtual certainty’ that a container holds contraband.” Here,when Perry felt the bundle he had “not seen anything to visually confirm that there was contraband within it.” The panel noted that Perry admitted he did not see the package’s outer tinfoil wrapping until he searched the pack at his office. It also explained that “a bundle of clothes [] could have wrapped up any number of items [] lacking [] a distinctive quality.” Thus, “the bundle’s contents were not a foregone conclusion when Perry searched it on the bus.” His search violated the Fourth Amendment. 6. Perry’s search at the DEA office also was illegal: The panel said its analysis here was similar to its search analysis inside the bus. It again held plain view could not excuse Perry’s actions. Before the office search, Perry had gleaned additional information about the bundle (hard to touch, crinkling, crushing feel). But because he got that information illicitly it could not be used to justify the office search. Even with that information, the government could not establish by a“virtual certainty” that the bundle contained contraband. 7. Johnson did not waive the argument that the agent again illegally searched pack at DEA office: To save the illicit search at the DEA office, the government contended Johnson had waived the argument that the office search was illegal. The panel said that Fed. R. Crim. P.12 governs the “failure to file pretrial motions,” as well as “unmade arguments in an otherwise timely motion.” On appeal, an unmade argument is not considered at all. Here, however, Johnson impliedly challenged the DEA office search. His pleadings referenced the photos taken at the DEA office as well as Perry manipulating the long underwear there. Most importantly, Johnson’s pro se reconsideration motion “directly challenged the search of the backpack at the office byreferring to Perry’s exploration of the contents of the bundle, which occurred only at the DEA office.” The panel held that “these assertions” were “sufficiently definite, specific, detailed and nonconjectural” to preserve the argument for appeal.* 8. On remand government cannot make new arguments to justify the search: The panel rejected the government’s plea to allow it to argue “new grounds” to support the evidence’s admission on remand. It said the government did not cite any authority for its argument. Besides, it is the government’s burden to prove warrantless searches come within an exception to the warrant requirement. The panel refused to give it another opportunity to make its case on remand. *** Practice Notes: why would Perry have noticed where Johnson in particular had left his bag? In other cases, he has testified that he gets on the empty bus while it is in the wash bay area to inspect bags. See United States v. Fernandez, 24 F.4th 1321 (10th Cir. 2022). He will take bags off the overhead rack and hold them with both hands to assess their weight, shape and contents. There is a good argument under Nicholson and Bond, that this is an illegal search. Impliedly, that is what he did here, which expalins why of all the bags on the empty bus, Johnson’s was of interest to him. Also Perry often asks a passenger whether he or she has "any luggage on board." By using this non-specific term, he can later claim that a passenger who answers, 'no', has abandoned any personal item he./she has anywhere on the bus. The term luggage does not have a universal meaning. In Fernandez for example, one passenger responded, no, he did not have "any luggage" but he did have a "backpack." Another passenger asked Perry in Spanish what he meant by "luggage" and Perry said "suitcases." Nicholson is very important case in this context. It sets out the parameters for what is permissible and limits what an officer may do with a passenger’s bag. A passenger may expect “highly limited contact” or “minimal moving” from others as they discretely move another’s bag to make room for their own. 144 F.3d at 638-39. But an officer’s handling of a traveler’s bag will almost certainly exceed what he or she expects the bag will endure from others when the officer is an“expert examiner” whose purpose is to discover “the nature of the contents of the bag.” 144 F.3d at 638 . Tenth Circuit precedent on waiver is fraught. A different panel might not have held Johnson preserved the issue. For example in Fernandez, the panel held that even though the district court addressed the precise issue Fernandez raised on appeal in its memorandum opinion, it was not preserved for review because the district court did so only “generally.” In its view, Rule 12 does not permit plain error review on appeal. To ensure all viable issues are preserved, consider filing a motion to supplement the motion to suppress or the reply, a motion for reconsideration or ask to file supplemental briefing after an evidentiary hearing.