throbber
Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 1
`FILED
`United States Court of Appeals
`Tenth Circuit
`
`September 10, 2024
`
`Christopher M. Wolpert
`Clerk of Court
`
`PUBLISH
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE TENTH CIRCUIT
`_________________________________
`
`UNITED STATES OF AMERICA,
`
` Plaintiff - Appellee,
`
`v.
`
`KEVIN LEWIS,
`
` Defendant - Appellant.
`
`–––––––––––––––––––––––––––––––––––
`
`UNITED STATES OF AMERICA,
`
` Plaintiff - Appellee,
`
`v.
`
`OTIS PONDS,
`
` Defendant - Appellant.
`_________________________________
`
`
`
`
`
`No. 22-3125
`
`
`
`
`
`
`
`
`
`
`
`No. 22-3126
`
`Appeals from the United States District Court
`for the District of Kansas
`(D.C. Nos. 6:20-CR-10028-EFM-11 &
`6:20-CR-10028-EFM-15)
`_________________________________
`
`Megan L. Hayes, Attorney at Law, Laramie, Wyoming, for Defendant -
`Appellant Kevin Lewis.
`
`Lynn C. Hartfield, Law Office of Lynn C. Hartfield, LLC, Denver, Colorado,
`for Defendant - Appellant Otis Ponds.
`
`
`
`
`
`
`

`

`Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 2
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`James A. Brown, Assistant United States Attorney (Kate E. Brubacher, United
`States Attorney, with him on the brief), Topeka, Kansas, for Plaintiff -
`Appellee.
`
`_________________________________
`
`Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges.
`_________________________________
`
`PHILLIPS, Circuit Judge.
`_________________________________
`
`These consolidated appeals share two legal issues raised by two
`
`defendants convicted of crimes arising from a vast conspiracy to distribute
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`methamphetamine, marijuana, heroin, powder cocaine, and crack cocaine in
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`Wichita, Kansas. One defendant, Kevin Lewis, went to trial and was convicted
`
`of all charges. The other, Otis Ponds, pleaded guilty days before trial but
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`reserved his ability to appeal two issues: (1) whether the government violated
`
`his Sixth Amendment rights to a speedy trial and (2) whether he is entitled to
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`an order suppressing all evidence derived from one of the FBI’s wiretaps, on
`
`grounds that the wiretap application was not signed by the statutorily approved
`
`Department of Justice official designated on the authorization filing, but rather
`
`was signed by some other, unknown person. Lewis raises these same two issues
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`in his appeal. In addition, Lewis alone raises a third issue: (3) whether the
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`length of his sentence is substantively unreasonable. We affirm the district
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`court’s judgment as to all three issues.
`
`
`
`
`
`
`
`2
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`

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`Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 3
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`
`
`BACKGROUND
`
`Kevin Lewis and Otis Ponds were two of twenty-four defendants charged
`
`in a fifty-five-count indictment for their roles facilitating a drug-trafficking
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`conspiracy in Wichita, Kansas. The chief of this operation was another man,
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`Travis Knighten, who led the organization’s activities from inside an Oklahoma
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`state penitentiary. Given Knighten’s confined location, he used contraband cell
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`phones to coordinate with his “main traffickers,” including Lewis and Ponds. R.
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`vol. 1, at 156 ¶ 4. From prison, Knighten directed Lewis and Ponds to arrange
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`and execute the purchase and sale of illegal drugs, including methamphetamine,
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`marijuana, heroin, powder cocaine, and crack cocaine.
`
`Though Knighten headed the organization, the FBI’s investigation didn’t
`
`start with him. Before the FBI knew about Knighten, a confidential source
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`separately reported that another man, Dorzee Hill, was selling heroin in
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`Wichita. This information from the FBI’s source, plus a referral from the
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`Wichita Police Department about gang activity in the area, spurred the FBI to
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`begin investigating the Wichita drug-trafficking ring in the spring of 2018. The
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`FBI began by orchestrating a series of “controlled buys” between the
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`confidential source and Hill. R. vol. 5, at 976. This entailed the FBI sending the
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`confidential source to Hill’s house to buy heroin, with a recording device and
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`“pre-recorded” bills, and then meeting with the source after the exchange at a
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`predetermined location to collect the evidence—“black tar heroin.” Suppl. R.
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`
`
`3
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`

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`Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 4
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`vol. 1, at 38 (sealed).1 The FBI conducted six of these controlled buys between
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`July 2018 and March 2019. These exchanges confirmed the FBI’s suspicions
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`that Hill was dealing heroin, but led no further. Hill had been careful not to
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`reveal his supplier or unmask any of his co-conspirators.
`
`To aid its investigation, the FBI began conducting physical surveillance
`
`outside Hill’s residence in the fall of 2018. The FBI sometimes used GPS
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`“pings” as part of this surveillance, to track Hill’s location through his cell
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`phone. Id. These tactics proved fruitless because Hill “lived on a dead-end
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`street” surrounded by family members who “would serve as lookouts for him,”
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`and the GPS monitoring was neither accurate nor reliable. R. vol. 5, at 871.
`
`After these failed attempts at physical surveillance, the FBI resorted to
`
`installing a pole camera on a utility pole up the street from Hill’s house. The
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`pole camera went up on October 4, 2018. The pole camera recorded video
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`footage of the comings and goings outside Hill’s residence. And the FBI used it
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`to capture many of the controlled heroin buys on camera. But the pole camera
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`could take the FBI’s investigation only so far. Much about Hill’s activities and
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`inner workings remained unknown. To bridge the gap, the FBI needed to hear
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`Hill’s conversations. So in the spring of 2019, the FBI sought its first federal
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`authorization for a wiretap on Hill’s cell phone.
`
`
`1 We have determined that nothing quoted from this sealed volume
`reveals sensitive information. Future cites in this opinion to this volume will
`not be designated as sealed.
`
`
`
`4
`
`

`

`Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 5
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`In April 2019, the FBI procured its first court-authorized wiretap for a
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`cell phone used by Hill. The first wiretap ran for one month, intercepting phone
`
`calls and texts made to and from this cell phone. Then in May 2019, the FBI
`
`secured a second authorized wiretap using information gleaned from the first.
`
`The second wiretap continued to intercept calls and texts on the same phone
`
`used by Hill, plus another of Hill’s cell phones, and a third cell phone used by
`
`another codefendant. That wiretap also ran for about a month. It was during the
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`second wiretap that the FBI first heard Hill talking to Knighten during several
`
`intercepted phone conversations. From these communications, the FBI
`
`discovered that Knighten, not Hill, was the organization’s leader. So in June
`
`2019, the FBI secured its third and final wiretap authorization, which again ran
`
`for about a month, intercepting phone calls and texts to and from three cell
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`phones: the two previously tapped phones used by Hill, and a third used by
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`Knighten. Lewis was intercepted on the third wiretap, talking and texting with
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`Knighten to arrange several drug deals.2 Conversations with Ponds were
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`intercepted on all four cell phones across the three wiretaps. The third (and
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`last) wiretap expired on July 20, 2019.
`
`Days before the last wiretap ended, the FBI obtained and executed five
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`search warrants for several residences connected to the drug conspiracy, from
`
`
`2 All three wiretap applications listed Lewis as one of the “Target
`Subjects” and as “Hill’s main source of supply for heroin.” Suppl. R. vol. 1, at
`29, 33.
`
`
`
`5
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`

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`Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 6
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`which law enforcement seized drugs, drug paraphernalia, cell phones, cash, and
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`firearms. This mostly concluded the FBI’s investigation, but the pole camera
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`stayed on and kept recording outside Hill’s house until November 2019.
`
`According to the investigation’s lead agent, FBI Agent Cameron Heath, the FBI
`
`left the pole camera running because agency policy requires that inactive pole
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`cameras be removed from the field—removal in this case would have been
`
`risky because Hill’s family was constantly watching for suspicious police
`
`activity in the neighborhood. Plus, according to Agent Heath, the FBI
`
`maintained an interest in “who was coming and going from that location”
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`before the “indictments were going to come down.” Id. at 981.
`
`On February 26, 2020, a federal grand jury returned an indictment that
`
`charged twenty-four defendants, including Knighten, Hill, Lewis, and Ponds,
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`with a slew of drug-trafficking-related crimes. Lewis was arrested on March 4,
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`2020, but Ponds evaded arrest until December 23, 2020.
`
`About a year later, on April 20, 2021, the government charged its
`
`superseding indictment, which removed the defendants who had pleaded guilty
`
`and added other drug-and-gun-related charges for some remaining defendants.
`
`The superseding indictment charged Ponds with conspiracy to distribute
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`methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A); two
`
`counts of maintaining a drug-involved premises, in violation of § 856(a)(1);
`
`and using a telephone to facilitate a drug-trafficking crime, in violation of
`
`§ 843(b). The superseding indictment charged Lewis with conspiracy to
`6
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`

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`Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 7
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`distribute methamphetamine, in violation of §§ 846, 841(a)(1), (b)(1)(A);
`
`conspiracy to distribute heroin, in violation of §§ 846, 841(a)(1), (b)(1)(A);
`
`conspiracy to distribute cocaine, in violation of §§ 846, 841(a)(1), (b)(1)(C);
`
`conspiracy to distribute crack cocaine, in violation of §§ 846, 841(a)(1),
`
`(b)(1)(C); maintaining a drug-involved premises, in violation of § 856(a)(1);
`
`and three counts of using a telephone to facilitate a drug-trafficking crime, in
`
`violation of § 843(b).
`
`Ponds pleaded guilty on February 23, 2022. Under the terms of the plea
`
`agreement, Ponds agreed to plead guilty to one count of maintaining a drug-
`
`involved premises, in exchange for the government dropping the other charges
`
`against him. The government agreed to let Ponds reserve his ability to appeal
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`two orders entered by the district court: (1) an order denying Ponds’s motion to
`
`suppress evidence obtained from the first wiretap, and (2) an order denying
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`Ponds’s motion to dismiss the indictment on speedy-trial grounds. The
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`agreement recommended a sentencing range between 80 and 108 months, and
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`Ponds waived his right to appeal any sentence imposed by the district court
`
`within this range. At sentencing, the district court imposed an 80-month
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`sentence.
`
`Lewis elected to go to trial, which, after nearly two years of discovery
`
`and a series of pretrial motions, began on February 28, 2022. After a ten-day
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`trial, a jury convicted Lewis on all counts charged in the superseding
`
`
`
`7
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`

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`Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 8
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`indictment. The district court sentenced Lewis to serve 420 months’
`
`imprisonment.
`
`Lewis and Ponds (Defendants) timely appealed. This court consolidated
`
`their appeals. We have jurisdiction to hear these consolidated appeals under 28
`
`U.S.C. § 1291 and 18 U.S.C. § 3742(a).
`
`DISCUSSION
`
`Three issues are presented for our review. First, Defendants challenge the
`
`
`
`district court’s denial of their motions to dismiss the indictment on
`
`constitutional speedy-trial grounds.3 Second, Defendants dispute the district
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`court’s denial of their motions to suppress evidence derived from the first
`
`wiretap. Third, Lewis argues that his 420-month sentence is substantively
`
`unreasonable. We take these in turn, starting with the speedy-trial issue.
`
`I.
`
`Speedy Trial
`
`In November 2021, Defendants filed pretrial motions to dismiss the
`
`indictment, arguing that the government violated their Sixth Amendment rights
`
`to a speedy trial by causing a two-year delay between the indictment and the
`
`
`3 In Defendants’ opening briefs, they also challenge the district court’s
`ruling under the Speedy Trial Act, 18 U.S.C. § 3161(c)(1), but they abandon
`these arguments in their respective reply briefs. Defendants concede the
`government’s point that any error under the Speedy Trial Act would be
`harmless because both Lewis and Ponds “were brought to trial within the STA’s
`70-day limit based on overlapping and excludable delays under the provisions
`of § 3161(h)(1)(D) and (H).” Resp. Br. at 20. Because the Speedy Trial Act
`arguments have been abandoned, we do not address them.
`8
`
`
`
`

`

`Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 9
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`trial. The district court denied the motions, and Defendants now appeal that
`
`decision. We affirm.
`
`A.
`
`Legal Background
`
`The Sixth Amendment guarantees criminal defendants “the right to a
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`speedy and public trial.” U.S. Const. amend. VI. “This right attaches when the
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`defendant is arrested or indicted, whichever comes first.” United States v.
`
`Larson, 627 F.3d 1198, 1207 (10th Cir. 2010) (cleaned up). An infringement of
`
`the speedy-trial right requires dismissal of the indictment. Betterman v.
`
`Montana, 578 U.S. 437, 443–44 (2016). Though the speedy-trial remedy is
`
`severe, the right itself is “slippery.” Barker v. Wingo, 407 U.S. 514, 522 (1972)
`
`(explaining that “any inquiry into a speedy trial claim necessitates a functional
`
`analysis of the right in the particular context of the case” (citation omitted)).
`
`Because of the “amorphous quality of the right,” id., the Supreme Court has
`
`issued a flexible, four-factor balancing test that weighs “the conduct of both the
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`prosecution and the defendant,” id. at 530, to determine whether a speedy-trial
`
`error has occurred. These so-called Barker factors are (1) the length of the
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`delay, (2) the reason for the delay, (3) the defendant’s assertion of the speedy-
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`trial right, and (4) prejudice to the defendant. Id.
`
`Length of Delay. The length-of-delay factor is a “double inquiry,” the
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`first part being a threshold to the Barker analysis. United States v. Seltzer, 595
`
`F.3d 1170, 1176 (10th Cir. 2010). We consider first whether the defendant has
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`shown a “presumptively prejudicial” delay sufficient “to trigger a speedy trial
`9
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`

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`Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 10
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`analysis,” which is any delay longer than one year. Id. (quoting Doggett v.
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`United States, 505 U.S. 647, 651–52 (1992)). If the defendant cannot show a
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`one-year-plus delay, then we do not proceed to the remaining factors. See
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`Barker, 407 U.S. at 530 (“Until there is some delay which is presumptively
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`prejudicial, there is no necessity for inquiry into the other factors that go into
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`the balance.”). But if the defendant has shown a presumptively prejudicial
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`delay, we then consider “the extent to which the delay stretches beyond the
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`bare minimum needed to trigger judicial examination of the claim.” Seltzer, 595
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`F.3d at 1176 (quoting Doggett, 505 U.S. at 652). In doing so, we may account
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`for the complexity of the charges. See id.
`
`Reason for Delay. The second factor—the reason for delay—has been
`
`touted as “[t]he flag all litigants seek to capture.” United States v. Keith, 61
`
`F.4th 839, 852 (10th Cir. 2023) (quoting United States v. Loud Hawk, 474 U.S.
`
`302, 315 (1986)). At this stage, “[i]t is incumbent upon the government to
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`present acceptable reasons for the delay.” United States v. Margheim, 770 F.3d
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`1312, 1326 (10th Cir. 2014). Not all reasons for a delay are weighed the same.
`
`We fault the government more for a “purposeful delay or delay to gain
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`advantage” and less for delays caused by “negligence.” Id. (quoting United
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`States v. Gould, 672 F.3d 930, 937 (10th Cir. 2012)); see Barker, 407 U.S. at
`
`531 (“[D]ifferent weights should be assigned to different reasons.”). Likewise,
`
`we hold the defendant accountable for self-inflicted delays, including those
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`attributable to filing pretrial motions or seeking continuances. United States v.
`10
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`

`

`Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 11
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`Tranakos, 911 F.2d 1422, 1428 (10th Cir. 1990); see, e.g., United States v.
`
`Abdush-Shakur, 465 F.3d 458, 465 (10th Cir. 2006) (finding “little merit” in
`
`defendant’s Sixth Amendment speedy-trial claim because “in the wake of the
`
`government’s legitimate request for a continuance” defendant “sat on his hands
`
`for seven months and requested several continuances of his own”).
`
`Often, the government and the defense share the blame for various
`
`pretrial delays, so in assessing the reason-for-delay factor under Barker, “we
`
`attempt to ‘divide’ the overall delay into discrete ‘periods.’” United States v.
`
`Muhtorov, 20 F.4th 558, 639–40 (10th Cir. 2021) (quoting United States v.
`
`Black, 830 F.3d 1099, 1113 (10th Cir. 2016)). Then, for each one, we decide
`
`“whether the government or the criminal defendant is more to blame for the
`
`delay.” Id. at 640 (quoting Doggett, 505 U.S. at 651). This splicing exercise
`
`doesn’t end with us observing which party is blameworthy for the longest
`
`stretch of delay and then automatically weighing the second Barker factor
`
`against that party. See id. We also pay attention “to the circumstances that
`
`caused [each] delay” because this tells us “how strongly to weigh it.” Id. For
`
`instance, a shorter (yet nefariously motivated) delay counts more heavily
`
`against the responsible party than a longer (yet innocuously caused) one. See
`
`id. (“For example, ‘even if the defendant is responsible for a majority of the
`
`delay, we could weigh the second Barker factor against the government if the
`
`government delayed the trial to gain an advantage over the defendant or to
`
`deprive the defendant of his ability to defend himself at trial.’” (quoting Black,
`11
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`

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`Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 12
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`830 F.3d at 1120)). So we must examine each segment of the total pretrial delay
`
`separately, considering which party caused each portion and why.
`
`Assertion of Right. For the assertion-of-right factor, we simply look to
`
`“whether the defendant ‘actively’ asserted his right,” or rather, “whether the
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`defendant’s behavior during the course of litigation evince[d] a desire to go to
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`trial.” Keith, 61 F.4th at 853 (quoting United States v. Koerber, 10 F.4th 1083,
`
`1110 (10th Cir. 2021)); see Margheim, 770 F.3d at 1328 (noting “the frequency
`
`and force of [defendant’s] objections” in weighing the strength of defendant’s
`
`assertion of his speedy-trial right (cleaned up)).
`
`Prejudice. Last, we consider the prejudice that the delay caused to the
`
`defendant. This requires the defendant to “make a particularized showing” that
`
`the delay prejudiced an interest that the speedy-trial right is designed to
`
`protect: “(i) the prevention of oppressive pretrial incarceration; (ii) the
`
`minimization of anxiety and concern of the accused; and (iii) the minimization
`
`of the possibility that the defense will be impaired.” Black, 830 F.3d at 1122
`
`(quoting United States v. Hicks, 779 F.3d 1163, 1169 (10th Cir. 2015)). The
`
`defendant’s failure to show prejudice “eviscerate[s]” his claim. Keith, 61 F.4th
`
`at 854 (quoting Margheim, 770 F.3d at 1329); see Gould, 672 F.3d at 939 (“A
`
`showing of prejudice may not be absolutely necessary in order to find a Sixth
`
`Amendment violation, but we have great reluctance to find a speedy trial
`
`deprivation where there is no prejudice.” (quoting Perez v. Sullivan, 793 F.2d
`
`249, 256 (10th Cir. 1986))).
`
`
`
`12
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`B.
`
`Pertinent Facts
`
`
`
`Lewis and Ponds were indicted on February 26, 2020. Lewis was arrested
`
`about a week later, on March 4, 2020, and he first appeared in court on March
`
`6, 2020. The district court entered an order detaining Lewis pending trial on
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`March 10, 2020. Lewis’s trial began on February 28, 2022. So Lewis spent
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`almost two years in pretrial detention, from March 4, 2020, until February 28,
`
`2022.
`
`
`
`Ponds’s route was more circuitous—he did not appear in Kansas district
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`court until March 2021, almost a year after Lewis. After being indicted in
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`February 2020, Ponds was “operating, living, [and] working under a false ID”
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`in California, apparently to “remain undetected” by federal authorities.4 R. vol.
`
`5, at 407–08. Then, on December 23, 2020, law enforcement finally
`
`apprehended Ponds and arrested him based on the charges in the indictment. He
`
`was then transferred to federal custody in Kansas, and he appeared for his
`
`detention hearing before a Kansas magistrate judge on March 1, 2021. The
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`magistrate ordered Ponds released on conditions but, days later, on March 5,
`
`2021, the government successfully appealed the magistrate’s order to the
`
`district court. The district court ordered Ponds to be detained pending trial.
`
`Ponds entered his guilty plea on February 23, 2022, five days before trial
`
`began. So from his initial arrest in California until his guilty plea, Ponds spent
`
`
`4 Ponds challenges this characterization, but as we explain in n.9, infra,
`we do not count this period against Ponds for speedy-trial purposes.
`13
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`Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 14
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`a little over one year in detention, from December 23, 2020, until February 23,
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`2022.
`
`
`
`The district court initially set Lewis’s trial date for May 26, 2020, which
`
`the court soon modified to June 2, 2020. Then, on April 2, 2020, the
`
`government filed a motion to declare the case complex, after which the district
`
`court held a status conference, on April 29, 2020. The court heard arguments on
`
`the motion and attempted to set a realistic timeline for discovery.5 Around the
`
`same time, the court appointed a coordinating discovery attorney to manage the
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`discovery process.
`
`
`
`After the April status conference, on May 1, 2020, the district court
`
`granted the government’s motion to declare the case complex. The district court
`
`found the case complex based on the large number of defendants, the
`
`interception of communications from four phone lines, the amount of
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`discoverable material (including “a significant number of transcripts and
`
`recorded conversations in addition to phone downloads and surveillance
`
`videos”), the “interfer[ence] with discovery production” caused by the COVID-
`
`19 pandemic, and the need “for defense counsel to review, organize, and digest
`
`the materials.” R. vol. 1, at 396. This order released the case from the time
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`limits imposed by the Speedy Trial Act. In the same order, the court set a status
`
`conference for July 10, 2020, to track the progress of discovery.
`
`
`5 At the April 29, 2020 status conference, Lewis objected to the
`government’s motion to declare the case complex and requested a speedy trial.
`14
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`Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 15
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`
`
`The July 10, 2020 status conference was the first time the length of the
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`pole-camera footage was specifically raised as a potential slowdown for the
`
`discovery process. By this point, the government hadn’t yet produced the pole-
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`camera footage due to “technical glitches.” R. vol. 5, at 181. But it had given
`
`the “bulk” of the other discovery to defense counsel.6 Id. The government
`
`acknowledged that the pole-camera footage was “quite large” because the
`
`camera had been “running for 24 hours a day for 13 months.” Id. at 180.
`
`Counsel hoped that the government might “pare down” the footage or provide
`
`defense counsel with more detail about which segments of the footage were
`
`relevant. Id. at 185. The district court considered this obstacle and posited that
`
`even the government identifying the relevant segments of the footage might not
`
`“exhaust [defense counsels’] own obligations with respect to what may happen
`
`on the video.” Id. at 190. Yet the court acknowledged that, because the pole
`
`camera outside Hill’s house ran nonstop for thirteen months, there would be
`
`large portions of the video where, as the court put it, “nothing’s happening.” Id.
`
`at 187.
`
`
`
`By the next status conference, on August 21, 2020, one defense attorney
`
`confirmed that all the defendants’ counsel had received the pole-camera footage
`
`from the government and that paralegals were “making their way through it.”
`
`
`6 This included “line sheets, the T3 apps and orders, the phone calls
`themselves, police reports, phone downloads, a drone video, search warrant
`photos and reports, arrest interviews, videos, most of the lab results, [and]
`some of the nexus reports on the firearms.” R. vol. 5, at 180.
`15
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`Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 16
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`Id. at 212. That attorney estimated that the two paralegals reviewing the
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`footage would require another two-to-three months to finish reviewing the pole-
`
`camera footage. The court clarified that the purpose of the paralegals’ review
`
`was “to identify what portions of the video [defense counsel] need to look at.”
`
`Id. at 218–19. So to speed the process along, and “in the interests of the
`
`defendants, particularly those detained,” the court sanctioned the use of a third
`
`paralegal to help review the footage. Id. at 220.
`
`
`
`At the next status conference on October 2, 2020, the defense reported
`
`that the paralegals were not expected to complete the pole-camera-footage
`
`review until the first of the year in 2021. On November 19, 2020, during the
`
`next status conference, the district court prodded the government about its
`
`timeline for producing the segments of the footage it planned to use at trial.
`
`The court then gave the government “an aspirational date” of sixty days to
`
`produce these segments. On January 13, 2021, the status conference report was
`
`that the paralegals had finished reviewing “about a quarter” of the pole-camera
`
`footage and were moving at a rate of “two and a half to five hours per 24-hour
`
`period to review.” Id. at 285. Based on that pace, the paralegals estimated that
`
`they would complete the review by June 2021. With this update, the defense
`
`relayed to the court that “the video is pretty grainy,” that “it’s difficult to make
`
`out specific individuals or vehicles,” and that “you can’t see what’s going on.”
`
`Id. The government also updated the court that it was “about halfway through”
`
`the pole-camera footage, having identified “somewhere between 30 and 40
`16
`
`
`
`

`

`Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 17
`
`specific dates and times” that it might introduce as part of its case in chief
`
`against the many defendants still awaiting trial. Id. at 288–89. The government
`
`added that it was on pace to meet the court’s February 19, 2021 deadline for
`
`producing the relevant segments of footage to the defense. The court ended by
`
`expressing its “overarching concerns” about “the discovery procedures that the
`
`federal law enforcements have used to accumulate so much video.” Id. at 290.
`
`The court stressed that “defense [counsel] may view some items captured on
`
`video as potentially exculpatory in ways perhaps the Government would not
`
`perceive them,” which “compels the defense team to review all of the images
`
`that have been captured.” Id. at 291.
`
`
`
`At the start of the next status conference on March 15, 2021, the
`
`government confirmed that it had met the court’s sixty-day deadline to produce
`
`the relevant segments from the pole-camera footage. The defense reported that
`
`the paralegals had completed reviewing “149 of the 416 days of footage.” Id. at
`
`420. Counsel attributed the slow progress to “more activity and possibly more
`
`relevant information” on the recording. Id. By the next conference on June 7,
`
`2021, the paralegals had finished viewing all the relevant portions of pole-
`
`camera footage identified by the government and provided summaries of those
`
`segments to all defense counsel. Still, the court was alarmed at the time
`
`consumed by reviewing pole-camera footage and remarked that the case’s
`
`passing “the year anniversary mark” triggered “constitutional speedy-trial
`
`considerations.” Id. at 452–53. Even so, the court maintained that “defense
`17
`
`
`
`

`

`Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 18
`
`[counsel] have an obligation to provide effective assistance to review all the
`
`evidence that’s there, to see if there’s anything exculpatory in one fashion or
`
`another for their client.” Id. at 454. This “obligation,” the court pressed, was
`
`not “relieve[d]” by the government producing the relevant segments of pole-
`
`camera footage to the defense. Id.
`
`
`
`About a month later, on July 19, 2021, Ponds filed a notice of demand for
`
`a speedy trial. Just over a week later, on July 29, 2021, the district court held a
`
`pole-camera meeting, during which it admonished the government for
`
`producing “over 10,000 hours of pole camera video,” yet planning to use no
`
`more than two hours of footage at trial. Id. at 466 Still, the court restated that
`
`“defense counsel are obligated, all 24 of them, to look at in some way—if not
`
`themselves, through their legal assistants—all 10,000-plus hours of discovery
`
`in this case.” Id. at 469. Failing to do so, the court cautioned, could “imperil
`
`the actual trial.” Id. at 472. The court noted Ponds’s demand for a speedy trial,
`
`and Lewis’s counsel told the court that he planned to file a speedy-trial motion,
`
`as well. The court anticipated that these motions would be “colorable” because,
`
`though law enforcement was “entitled” to install a pole camera, the court saw
`
`“no good reason to collect 400 days of pole camera” footage. Id. at 470–71.
`
`
`
`The painstaking pole-camera-review process finally ended in September
`
`2021. With discovery over, the court scheduled a pretrial motions deadline for
`
`November 15, 2021, and set a trial date for February 28, 2022. In November
`
`2021, Lewis and Ponds filed their motions to dismiss the indictment on speedy-
`18
`
`
`
`

`

`Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 19
`
`trial grounds.7 The motions alleged that the government had unconstitutionally
`
`delayed trial by producing over 10,000 hours of pole-camera footage that
`
`defense counsel were ethically obligated to review.8
`
`
`
`After hearing arguments on the speedy-trial motion, the district court
`
`issued a written order on February 16, 2022, denying both motions. United
`
`States v. Lewis, 586 F. Supp. 3d 1094 (D. Kan. 2022). The court first recounted
`
`the investigatory tactics the FBI deployed during its “sprawling” investigation,
`
`including “60,000 intercepted communications” yielded from “six trap and
`
`trace warrants and three Title III interception [wiretap] authorizations.” Id. at
`
`1098. The FBI had additionally engaged in physical surveillance, executed
`
`search warrants, and installed two pole cameras, one of which represented “the
`
`source of [Defendants’] woes” and the impetus for the speedy-trial motions
`
`under review. Id.
`
`
`
`To decide whether the trial’s nearly two-year delay violated Defendants’
`
`speedy-trial rights, the court applied the four Barker factors. See id. at 1100.
`
`First (length of delay), the court concluded this factor was “neutral” because
`
`the delay was not so egregious considering the complexity of the case. Id. at
`
`
`7 The day of the pretrial-motions deadline, November 15, 2021, Ponds
`filed a motion to discharge his counsel. The court denied this motion. Because
`of this delay, the court allowed Ponds until November 24, 2021, to file his
`pretrial motions. On November 24, 2021, Ponds filed his motion to dismiss the
`indictment on speedy-trial grounds.
`
`
`8 Neither of Defendants’ speedy-trial motions cite the 60,000 phone calls
`and texts as cause for the pretrial delay.
`19
`
`
`
`

`

`Appellate Case: 22-3125 Document: 127-1 Date Filed: 09/10/2024 Page: 20
`
`1100–01 (referring to the “60,000 intercepted calls and texts, and 10,000 hours
`
`of pole camera footage”). Second (reason for delay), the court reasoned that
`
`“[t]he blame . . . lies at the feet of the Government” for causing defense
`
`counsel to review thousands of hours of pole-camera footage, and though “there
`
`is no evidence of purposeful delay,” this factor “weighs slightly in favor of
`
`[Defenda

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