*1 4138 and is population proceeding viction entitled to general continue
entitled
42
preclusive
at
The state
effect
in the
U.S.C.
enjoyed Marion.
same
he
status
prove
not
that Schertz did
as would have
available
1983 action
been
court concluded
§
general
placed in the
ren
to be
the state
was
entitled
he was
where
531,
upon
Heikien,
his return from
at ISP
See
v.
population
dered.
Gross
Supreme
(8th Cir.1992)
Court
(quoting
Iowa
v.
Migra
The
War
Marion.
denied 532
Once
certiorari.
petition
City
District
Edu
ren
Board
Schertz’s
School
of
remedies,
75, 83,
892, 897,
his state
cation,
exhausted
104
Schertz
465 U.S.
S.Ct.
stay.
lifted the
(1984)), petition
court
cert.
the district
L.Ed.2d 56
1992).
(U.S.
6,
July
No.
Un
filed,
92-5135
summary judg-
moved for
Defendants
law,
claims
Iowa
Schertz’s
der
§
ground that Schertz’s claim
ment
by his
state
would be barred
unsuccessful
estoppel. Schertz
collateral
barred
was
v.
postconviction proceeding.
Hunter
See
did
he
not receive
fair
responded
Moines,
121, 123
City
300 N.W.2d
Des
hearing
court-ap-
his
because
court
state
1981).
(Iowa
The
attorney was ineffective.
dis-
pointed
that the issue raised
court concluded
trict
To
extent that
asserts
Schertz
complaint
identical to
was
in this
§
disciplinary
lockup
his
detention
Iowa
postconviction
in the state
the issue raised
by his
to Marion
negated
time was
transfer
the issue was material
proceeding, that
general
subsequent placement in the
he
claim that
was
Schertz’s
relevant
v.
court’s
in Pletka
population, this
decision
upon
disciplinary detention
illegally held
banc),
(8th Cir.1992)(en
Nix,
federal prison. at the state
disciplinary sentence that Schertz’s concluded
The district court implicate his due not transfer did America, Appellee, UNITED STATES discipline satisfy not rights and did at previously imposed ISP. APPLEBY, Appellant. Glen arguing that release appeals, Schertz No. 91-2602. Marion population at ne- general into the Iowa, disciplin- of his gated Appeals, the remainder United States Court of that, he re- because ary lockup Eighth time Circuit. of counsel dur- assistance ceived ineffective July 1992. Submitted proceedings, postconviction ing the state Sept. 1992. Decided case on court should decide Banc Rehearing Rehearing En the merits. Denied Nov. 1992. district court agree with the entitled to claim he was that Schertz’s general population ISP placed in the
be estoppel. issue by collateral
is barred postcon- litigated the state actually
Gregory K. Johnson Cynthia J. Hyde, Springfield, Mo., argued, appel- for lee. McMILLIAN,
Before Judge, Circuit BRIGHT, Judge, Senior Circuit LOKEN, Judge. Circuit
McMILLIAN, Judge. Circuit Appleby appeals Glen from a final judgment entered in the United States Dis- trict Court1 the Western District of Missouri, upon jury verdict, finding guilty of one count of conspiracy to manu- methamphetamine facture and distribute (West violation of 21 Supp. U.S.C.A. 846 § 1992) possession and one count of of a three-neck, round-bottom flask in- with the tent to methamphetamine manufacture 843(a)(6). violation of 21 U.S.C. § imprisonment was sentenced to 235 months months, conspiracy on the count and 48 concurrently, possession be served on the count; years supervised of a flask five conspiracy release on the count and one release, year supervised to be served con- currently, possession on the of a flask count; special and a assessment of $100.00. reversal, Appleby argues For that the dis- (1) denying trict court erred in his motion suppress evidence seized from Kansas, (2) denying searches in his motion acquittal judgment on the basis that shown, multiple conspiracies (3) were deter- level, (4) mining his base offense allow- ing government’s handwriting expert testify proper de- without notice to the fense. also that the cumu- lative effect of the trial court errors right amounted to a violation of his to due and a fair trial. For the reasons below, discussed we affirm of the district court. conspiracy
Appleby was in a involved methamphet- manufacture and distribute' Kansas. This amine both Missouri and Viets, Columbia, Mo., (A. argued of two of Dan court affirmed the convictions Davis, Rock, Ark., Appleby’s co-conspirators, William Stock- Wayne Little brief), appellant. Gary Badley. States v. ton Clark, United States souri. 1. The Honorable Russell G. Judge of Mis- District for the Western District (8th Cir.1992) No. Appleby, F.2d 715 United States 90-03419- 01/07-CR-S-4, slip op. (W.D.Mo. 2-3 fully opinion Stockton
(,Stockton). Our
6, 1991) (order).
May
Apple-
they
as
relate to
facts
forth the
sets
716-17,
repeat
so
need not
by,
id. at
held
The district court
that while some
*3
the
in the affidavit for the
here.
statements
them
false, “Appleby
search
did
warrant were
TO SUPPRESS
MOTION
prove by
preponderance
not
a
of the evi-
that
the district court
argues
Appleby
Agent
any
made
dence that
Beckham
false
suppress
to
the
motion
denying
in
erred
deliberately
statements
with reckless
or
Kansas,
Thayer,
from his
seized
evidence
disregard for the truth.”
Id. at
3-4.
Kansas,
Chanute,
stor-
the
agree
residence
with the conclusion of
district
the
argues that the affi-
facility.
court,
age
Appleby
but for different reasons.
contained
for the search warrants
davits
the
Assuming
purposes
for
of anal
made with a
misrepresentations
material
prove
the
ysis only
Appleby
that
that
truth.”
disregard
for
the
“reckless
reckless
false statements were made with
Delaware,
98
438 U.S.
v.
Franks
truth,
that,
disregard for
hold
even
the
2674, 2684,
(1978)
trict court erred in
that
the
government’s
tive effect of all
the
of
unfair
conspiracy
responsible
was
for between 30 practices
by
allowed
the district court
kilograms
and 100
methamphetamine
of
amounted
process
to a due
violation. As
and, therefore, applying a base offense lev we have held all of Appleby’s individual
2D1.1(c)(3)(1990).
el of 38.
Ap
U.S.S.G. §
merit,
claims without
we also hold that no
pleby’s argument
argu
is identical to the
due
violation occurred.
by
co-conspirators
ments made
Badley
Accordingly,
we affirm the
of
and Stockton in
appeal.
their consolidated
the district court.
rejected
and, therefore,
argument
their
reject Appleby’s argument
for the same
BRIGHT,
Judge,
Senior Circuit
Stockton,
reasons. See
TESTIMONY BY GOVERNMENT HAND- spend twenty will almost years prison, a WRITING EXPERT drugs. victim of the on war Yet we seem war, losing that despite be the dramatic Appleby argues next that casualties. govern- court should not have allowed the handwriting expert testify ment’s be- separate As I stated a concurrence to expert cause the name the of was not dis- imposed the similar sentences Appleby’s on Appleby closed until a week into the trial. co-conspirators, “[wjhile obligated I am that this late disclosure made it sentences, affirm the I put my need not impossible to hire his own hand- on them.” stamp approval
writing expert. (8th States Cir.1992) {Stockton). In Appleby’s in- government argues Appleby that stance, judge the district court seemed to ample notice of the use of a handwrit- sentiments, wrote, share these for he “[t]he because, ing expert pre-trial hearing, at a sentence was at the lowest end of the government requested Appleby guidelines Ap- which is Br. excessive.” provide handwriting sample. a Additional- pellant (Judgment). at A5 government argues ly, requested never a continuance to hire a from a home comes stable handwriting expert. good family background. He has made a undoubtedly punish- taxpayers pay deserves more for
mistake and
will
incarcera-
imposed
($17,900)
twenty years
per
year
But
tion
than for a year
ment.
goes beyond
punish-
mere
fine,
college
private
the Guidelines
education at most
col-
leges. Stockton,
ment.
adequate essities_ father
The defendant’s char- ‘hardworking’ aas individu-
acterized thought involved in
al whom he was never *5 Mr.
drug or alcohol abuse. that his son suffered emotional dis-
advise a result of the divorce from his
tress as ¶¶ ELDER; Beverly 44-45. “The defendant’s wife.” PSR Charles K. S. Elder, wife, transcript indicated no behav- high school husband and ioral, social, problems. or psychological Plaintiffs-Appellants, high in school The defendant active ¶at 52. sports.” PSR HOLLOWAY; R.D. Other Unknown Em neighbors, family friends and Twelve ployees Agents, individually and/or support Appleby. members wrote capacity police in their official as acquaintance years of ten wrote: “I One County officers for Ada Sheriffs generous more have never known nicer Office, al., Defendants-Appellees. et person my Terry life. I stop have seen No. 91-35146. highway help people stranded on the go way get completely out of his them Appeals, States Court If was full going again. this world Ninth Circuit. Appleby’s it would sure be better Argued and Submitted Oct. 1991. place App. Gov’t at 30. His to live.” sis- apple wrote: “He’s the of his ter-in-law Decided Dec. 1991. everyone eyes, but he was to Dads [sic] As Sept. 1992. Amended Terry’s very him.... still a who knew good maybe astray for person, he went he’s back now and he’s the same
while but help all love him and will
as ever. We
any way we can.” Id. at 31-32. His broth- “If I could of his time in
er stated: do some so,
prison gladly I would do and so would 35. A family.”
the rest of our Id. at urged:
neighbor forty years of almost “If I I it your place, try & find in
were would mercy give
my heart to show some & chance.” at 37.
man a second Id. first-time
Oppressive sentences for of- require public funding.
fenders substantial my I noted concurrence
As notes various searches. Additional