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NOT FOR PUBLICATION AUG 09 2013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 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 (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 disputed facts. Under our
deferential standard of review, we hold that the district court’s credibility
determination was not “illogical, implausible, or without support in inferences that
may be drawn from facts in the record.” See United States v. Hinkson, 585 F.3d
1247, 1251 (9th Cir. 2009) (en banc).
2. The officers’ undisputed testimony was that they delayed, at most, twenty
minutes after observing the traffic violation before stopping Schultz, so as to avoid
confronting a possibly armed suspect in a store or commercial parking lot. Under
2
the totality of the circumstances, the officers’ decision to stop Schultz after that
short delay was reasonable under the Fourth Amendment. See Whren v. United
States, 517 U.S. 806, 810 (1996); United States v. Willis, 431 F.3d 709, 715 (9th
Cir. 2005).
3. The district court did not clearly err in crediting Detective Denton’s and
Giannone’s testimony, rather than Schultz’s, that Schultz knowingly and
intelligently waived his Miranda rights before telling the Detectives where in his
impounded car a gun was stashed. See United States v. Crews, 502 F.3d 1130,
1135 (9th Cir. 2007).
AFFIRMED
3
FILED
United States v. Schultz, No. 11-10427 AUG 09 2013
MOLLY C. DWYER, CLERK
WALLACE, Circuit Judge, concurring: U.S. COURT OF APPEALS
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 (1985). That “expertise” exists here: we are reviewing fact-
finding 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. Haswood, 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 potential timing/geography problem exists.
Judge Berzon concludes that there is no way Detective Giannone could have observed
Schultz run a stop light at Tropicana and Audrie and then followed him to another
1
location over five miles away before losing him, all in the span of six minutes. If there
was something to this supposed issue, it seems to me that Schultz’s attorney would
have raised it in the district court, yet the attorney did not. Schultz likewise did not
raise this issue on appeal. As she acknowledges, Judge Berzon alone has discovered
her asserted factual issue.
It may be that there is a simple explanation for the seeming discrepancy as to
the timing of Schultz’s surveillance. Indeed, it is possible that this geographic issue
is merely the result of imprecision in the dispatch log or officer testimony. Whether
imprecision in the log or testimony was the result of fabrication or mere mistake is the
province of the district court, not this panel. Judge Berzon’s “factual findings” on this
issue usurps the role of the district court. Had the trial lawyers, who knew this case
better than we do, thought the suggested issue had any merit and called it to the
attention of the court, the district judge could have made a record and a finding on the
precise issue.
Additionally, Judge Berzon questions Detective Giannone’s credibility because
he “flip-flopped” as to who first spotted Schultz again after he was lost. The district
judge personally observed Detective Giannone testify and could properly have
discounted his testimony if he did not believe it. After observing extensive
questioning and cross-examination of Detective Giannone’s so-called “flip-flop” as
2
to who first saw Schultz after he was lost, the district court accepted Detective
Giannone’s testimony on this issue. Unless we are willing to say that the district
court’s factual findings as to this alleged “flip-flop” were clearly erroneous, we should
not take it upon ourselves to be a Monday-morning quarterback for the district court
and make our own personal factual finding. Our sense of the truth of any particular
testimony cannot supplant the competency of the district court to make credibility
determinations based on careful observation as well as hearing testimony live. The
record alone is no substitute.
Finally, Judge Berzon expresses skepticism about the testimony of Detective
Giannone, finding it implausible that two separate officers—Detective Giannone and
Sergeant Siwy—both rediscovered Schultz within moments of one another, and that
Schultz, at nearly the same time, committed another traffic violation. Because of her
other concerns about the record, Judge Berzon indicates that she would give this
narrative little weight. But such a determination goes beyond what we are tasked with
doing as appellate judges. “[O]ur review of a factual finding may not look to what we
would have done had we been in the trial court’s place in the first instance.” United
States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir. 2009).
In sum, once we conclude that there is no clear error, our review of the facts is
over. We should not suggest that we would have made better factual findings based
3
on a review of the cold record. Any intimation otherwise is unfair to the very
experienced district judge who first-hand evaluated the evidence and determined
credibility.
4
FILED
United States v. Schultz, No. 11-10427 AUG 09 2013
BERZON, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
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
1
We may take judicial notice of maps, including Google Maps, to determine
distances and locations. See McCormack v. Hiedeman, 694 F.3d 1004, 1008 n.1
(9th Cir. 2012); United States v. Perea-Rey, 680 F.3d 1179, 1182 n.1 (9th Cir.
2012).
1
violations along the way. But Schultz has never pointed out the distance between
the two locations, here or to the district court, or relied upon that distance to
impeach Giannone’s credibility. For that reason, the apparent implausibility of this
aspect of Giannone’s story is not a proper basis for reversing the district court’s
credibility determination. Also, the issue not having been raised, there may be
some ground, of which I am not aware, for reconciling the testimony with the
actual distances.
2. Giannone flip-flopped on the stand regarding what the district court
correctly characterized as the “important” question whether Giannone, or Sergeant
Siwy, first spotted Schultz’s car again at 9:46 pm. Giannone first changed his
story only after a break in the proceedings before the magistrate judge, during
which prosecutors “refreshed” Giannone’s “recollection.” Giannone again
switched gears in his testimony before the district court. Although the district
court deferred to Giannone’s ultimate explanation for the “conflict,” if I were the
factfinder, I would have been considerably more suspicious about this fickle
testimony.
3. Finally, I am skeptical of Giannone’s explanation — memorialized for
the first time in a supplemental report nearly a year after the arrest — that about
half an hour after the police lost sight of Schultz, two officers in separate patrol
2
cars both saw Schultz within moments of each other, and, in the same minute,
Schultz committed another traffic violation. In light of the other discrepancies in
the record that I have identified, I would not attribute much weight to Giannone’s
ever-shifting narrative.
Despite my serious concerns, I cannot conclude on this record that the
district court’s findings were clearly erroneous. See United States v. Hinkson, 585
F.3d 1247, 1251 (9th Cir. 2009) (en banc). I therefore concur in the decision
affirming the denial of Schultz’s motion to suppress.
3