United States v. Wilkinson

FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS May 17, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 12-6200
STEPHEN WILKINSON, (D.C. No. 5:09-CR-00154-C-1)
(W. D. Okla.)
Defendant-Appellant.

ORDER AND JUDGMENT *

Before BRISCOE, Chief Judge, ANDERSON and TYMKOVICH, Circuit
Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,

therefore, submitted without oral argument.

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
 Stephen Wilkinson was found guilty following a bench trial for possession

of crack cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1).

He appeals pro se from the district court’s denial of his motion for new trial and

evidentiary hearing pursuant to Fed. R. Crim. P. 33(a). 1

I

On April 10, 2009, Lieutenant Todd Palmer of the Lawton, Oklahoma,

Police Department received a tip from an informant that a black male would be

bringing crack cocaine into Lawton from Texas in a small red pickup. Palmer and

his partner saw a red pickup that was driven by Stephen Wilkinson in the area of

town and during the time of day that matched details of the informant’s tip.

Palmer noticed that the pickup had a paper license tag that was unlawfully

covered with plastic, and he then requested that a patrol unit stop the truck.

Officer Timothy Poff received Palmer’s radio request, but he did not

receive any details regarding grounds for the stop. Poff did not see that the tag

was covered in plastic, but he noticed that the license tag looked altered or

wrinkled and thought that its weathered appearance meant that the tag had been

on the truck for longer than 30 days, the period for which paper tags are valid in

Oklahoma. Poff initiated a traffic stop, and a canine unit arrived soon thereafter.

1
Because Wilkinson proceeds pro se, “we liberally construe his filing but
‘do not assume the role of advocate.’” United States v. Viera, 674 F.3d 1214,
1216 n.1 (10th Cir. 2012) (quoting Yang v. Archuleta, 525 F.3d 925, 927 n.1
(10th Cir. 2008)).

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The dog alerted on the truck, and a search of the truck revealed 25 grams of crack

cocaine.

Wilkinson moved to suppress evidence found in his truck, arguing that Poff

did not have reasonable suspicion to stop him and that the stop exceeded the

permissible scope of a traffic stop. After an evidentiary hearing on Wilkinson’s

motion to suppress, the district court held that the stop and search were lawful.

The district court held that Poff could rely on Palmer’s observation that the

license tag was covered in plastic, and Poff himself had reasonable suspicion to

believe that the truck’s tag was forged. The district court found Wilkinson guilty

of possession of crack cocaine with the intent to distribute in violation of 21

U.S.C. § 841(a)(1). Wilkinson appealed the district court’s denial of his

suppression motion, and this court affirmed the district court’s findings,

concluding that Poff could rely on Palmer’s observation that Wilkinson’s license

tag was covered in plastic. See United States v. Wilkinson, 633 F.3d 938, 941

(10th Cir. 2011).

On February 13, 2012, Wilkinson filed a motion for a new trial and

evidentiary hearing pursuant to Fed. R. Crim. P. 33(a), citing the investigation

and firing of Palmer by the Lawton Police Department for policy and procedure

violations that allegedly occurred between 2007 and 2010. In his motion for a

new trial and evidentiary hearing, Wilkinson cited to news articles published in

June and July of 2011 that detailed the firing of Palmer for bribery and

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corruption, warrantless searches, illegal seizures, unauthorized forfeiture

settlements, and inaccurate arrest reports. Wilkinson specifically pointed to

allegations related to Palmer’s use of confidential informants, with whom Palmer

often negotiated backdoor deals in exchange for information—practices that

another officer described as akin to extortion. One district attorney was also

quoted in a newspaper article stating that Palmer’s ability to be a witness in a

case is “absolutely zero.” R., Vol. 1 at 42. 2

The district court denied Wilkinson’s motion for a new trial and evidentiary

hearing, and Wilkinson appeals the district court’s denial of his motion.

II

Wilkinson argues that he is entitled to a new trial and evidentiary hearing

because the government withheld impeachment evidence and because of newly

discovered evidence. He cites to the investigation and firing of Palmer by the

Lawton Police Department, arguing that the credibility of Palmer as a witness

influenced the outcome of Wilkinson’s suppression motion and ultimate

conviction.

2
On November 2, 2012, Wilkinson filed a motion with this court to
supplement the record on appeal to include a news article detailing the disposition
of a lawsuit filed by the City of Lawton against Palmer. As discussed below,
because we conclude that the credibility of Palmer as witness did not influence
the outcome of Wilkinson’s suppression motion or ultimate conviction, we deny
Wilkinson’s motion to supplement the record on appeal.

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 New Trial

We review the district court’s denial of a motion for a new trial for abuse

of discretion. United States v. Gwathney, 465 F.3d 1133, 1144 (10th Cir. 2006).

“‘A decision is an abuse of discretion only if it is arbitrary, capricious, whimsical,

or manifestly unreasonable.’” Id. (quoting United States v. Combs, 267 F.3d

1167, 1176 (10th Cir. 2001)). Our review of a claim asserted pursuant to Brady

v. Maryland, 373 U.S. 83, 87 (1963), in the context of a Rule 33 motion for a new

trial is de novo, with any factual findings reviewed for clear error. United States

v. Torres, 569 F.3d 1277, 1281 (10th Cir. 2009).

“To establish a Brady violation the defendant must demonstrate that (1) the

prosecution suppressed evidence, (2) the evidence was favorable to the defendant,

and (3) the evidence was material.” United States v. Diaz, 679 F.3d 1183, 1192

(10th Cir. 2012) (quotation omitted). “[E]vidence is ‘material’ within the

meaning of Brady when there is a reasonable probability that, had the evidence

been disclosed, the result of the proceeding would have been different.” Cone v.

Bell, 556 U.S. 449, 469-70 (2009). “In the event that ‘the reliability of a given

witness may well be determinative of guilt or innocence, nondisclosure of

evidence affecting credibility falls within [the Brady] rule.’” Torres, 569 F.3d at

1281 (quoting Giglio v. United States, 405 U.S. 150, 154 (1972)).

The district court denied Wilkinson’s motion for a new trial which raised a

Brady claim. Without deciding whether the government withheld favorable

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evidence from Wilkinson, the district court found that “the investigation and

firing of Palmer were not material evidence as required to show a violation of

Brady.” R., Vol. 1 at 102. The district court found that “evidence affecting

Palmer’s credibility as a witness could not have led to a different outcome in the

judgment against Defendant because the judgment was based on the stipulated

facts,” and that “evidence affecting Palmer’s credibility as a witness also would

not have led to a different disposition of the motion to suppress.” Id.

We agree with the district court that the evidence was not material to the

district court’s determination of Wilkinson’s guilt. The district court, in finding

Wilkinson guilty of the charges against him, relied solely on the parties’

stipulated facts, see Sup. R., Vol. 1 at 16, which are as follows:

1) If Officer Tim Poff, Lawton Police
Department, were called as a witness he would
testify that on April 10, 2009, at approximately
6:53p.m., he conducted a traffic stop in Lawton,
Oklahoma. Officer Poff would testify he stopped
a red Chevy S-10 pickup for improper display of a
license plate. Stephen Wilkinson, Jr., the
defendant in this case, was the driver and only
occupant of the pickup. Officer Poff would also
testify Mr. Wilkinson attempted to flee from the
scene after he was removed from the vehicle;
2) Officer Poff would testify the pickup was
searched after the traffic stop and the search
yielded approximately twenty-five (25) grams of
what he believed to be crack cocaine. Officer
Poff would further testify that in addition to the
substance he believed to be crack cocaine, a
digital scale with a white powder residue was also
discovered. Both the substance believed to be

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 crack cocaine and digital scale were found in the
center console of the pickup. Officer Poff would
testify that in his experience, 25 grams of cocaine
base is consistent with distribution, as opposed to
personal use. A subsequent search of Mr.
Wilkinson’s person revealed over $8,000.00 in
cash;
3) The substance believed to be crack cocaine
was later tested at the Drug Enforcement
Administration South Central Laboratory. If
called to testify, Pauline Orlando, Senior Forensic
Chemist at the DEA laboratory, would testify the
test results established the substance seized from
the Chevy S-10 pickup was cocaine base, a
Schedule II drug, with a net weight of 22.3 grams
and a purity of 39.9%.

Id. at 21. The parties’ stipulated facts do not mention Palmer’s testimony, and the

district court did not rely upon Palmer’s testimony in its judgment. See id. at 18.

Likewise, Palmer’s credibility as a witness was not material to Wilkinson’s

motion to suppress. We affirmed the district court’s denial of Wilkinson’s motion

to suppress based on the collective-knowledge doctrine, under which law

enforcement officers may rely on a bulletin or alert to conduct a stop or make an

arrest. See United States v. Rodriguez-Rodriguez, 550 F.3d 1223, 1227 (10th Cir.

2008). The relevant inquiry under the collective-knowledge doctrine is whether

the officer who issued the alert had the requisite level of suspicion. Id. In

accordance with the collective-knowledge doctrine, we concluded that “[b]ecause

Palmer had seen plastic covering the pickup’s paper tag, thereby establishing

reasonable suspicion for the stop, and told Poff to stop the truck, it does not

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matter that Poff did not see the plastic himself before making the stop.”

Wilkinson, 633 F.3d at 941. In affirming the district court’s denial of

Wilkinson’s motion to suppress, we did not address the district court’s alternative

basis for reasonable suspicion, which was that “Poff himself had reasonable

suspicion to believe that the truck’s tag was forged.” Id. As the district court

explained,

Even without Lieutenant Palmer’s report, Officer
Poff was justified in stopping Defendant’s truck.
Officer Poff testified that when he saw Defendant’s
truck, he could not read the tag and did not recognize its
format. Based on these observations, Officer Poff
believed the tag was possibly forged. As noted above,
under Oklahoma law and/or Lawton’s city ordinance, a
valid license plate must be readily readable at all times.
See 47 Okla. Stat. § 1113(A)(2); Lawton City Ordinance
23-5-524. Based on his belief about the license plate,
Officer Poff was justified in stopping Defendant’s
vehicle to further investigate the plate’s validity.

Supp. R., Vol. 1 at 13.

We conclude that the district court’s denial of Wilkinson’s motion to

suppress can be affirmed on the alternative basis that Poff had reasonable

suspicion to believe that the truck’s tag was forged. Under both Oklahoma law

and Lawton’s city ordinance, a valid license plate must be readily readable at all

times. See Okla. Stat. tit. 47, § 1113(A)(2); Lawton, Okla., Code of Ordinances §

23-5-524. At the suppression hearing, Poff testified that he suspected the license

plate on Wilkinson’s truck was either fabricated or forged:

8
 I noticed that there was something inappropriate with
the tag that was on the rear bumper of his vehicle. It
honestly looked to me like it was altered. It look
wrinkled . . . . It looked maybe weathered and wrinkled
and it looked like it was either fabricated or altered.
....
It looked to me like it was a really old, weathered,
tattered paper that usually indicates a person has had
that on the outside of the vehicle for a long period of
time, which means it would be past its 30-day
expiration.

Supp. R., Vol. 2 at 34-35. In addition, Poff testified that he could not read the

expiration date on the vehicle tag, which would also be violative of Oklahoma

law and Lawton’s city ordinance. Id. at 37.

“To determine the initial validity of a traffic stop, we ask whether the stop

was ‘objectively justified.’” United States v. DeGasso, 369 F.3d 1139, 1143

(10th Cir. 2004) (quoting United States v. Botero-Ospina, 71 F.3d 783, 788 (10th

Cir. 1995) (en banc)). A traffic stop is reasonable if the officer had “an

objectively reasonable articulable suspicion that a traffic violation has occurred or

is occurring before stopping the automobile.” United States v. Soto, 988 F.2d

1548, 1554 (10th Cir. 1993). As this court explained in United States v. Botero-

Ospina, 71 F.3d 783 (10th Cir. 1995) (en banc),

It is irrelevant, for purposes of Fourth Amendment
review . . . that the officer may have had other
subjective motives for stopping the vehicle. Our sole
inquiry is whether this particular officer had reasonable
suspicion that this particular motorist violated any one
of the multitude of applicable traffic and equipment
regulations of the jurisdiction.

9
Id. at 787 (quotation omitted). See also Whren v. United States, 517 U.S. 806,

813 (1996) (rejecting the argument that “the constitutional reasonableness of

traffic stops depends on the actual motivations of the individual officers

involved”). During the suppression hearing, Poff testified that he could not read

the expiration date on the vehicle tag, and he believed that the tag was forged.

We conclude that Poff had an objectively reasonable articulable suspicion that the

tag on Wilkinson’s truck violated Oklahoma state law and Lawton’s city

ordinance.

The district court also denied Wilkinson’s motion for a new trial pursuant

to this circuit’s five-factor test regarding newly discovered evidence. R., Vol. 1

at 103. When a defendant claims a right to a new trial based on newly discovered

evidence, the defendant must show:

(1) the evidence was discovered after trial; (2) the
failure to learn of the evidence was not caused by his
own lack of diligence; (3) the new evidence is not
merely impeaching; (4) the new evidence is material to
the principal issues involved; and (5) the new evidence
is of such a nature that in a new trial it would probably
produce an acquittal.

United States v. Redcorn, 528 F.3d 727, 743 (10th Cir. 2008) (quotation omitted).

As already discussed, evidence of Palmer’s misconduct is not material to the

principal issues involved in this case. In addition, Wilkinson does not show that

the new evidence is not merely impeaching, and he does not show that the new

evidence is of such a nature that were a new trial held an acquittal would be the

10
probable result.

We conclude that Wilkinson is not entitled to a new trial.

Evidentiary Hearing

“We review the decision of the district court on the propriety of an

evidentiary hearing for an abuse of discretion.” United States v. Pearl, 324 F.3d

1210, 1215 (10th Cir. 2003). “[A] district court is not required to hold an

evidentiary hearing before resolving a motion for a new trial, particularly when

the record is complete or the petitioner raised only legal claims that can be

resolved without the taking of additional evidence.” United States v. Velarde,

485 F.3d 553, 559 (10th Cir. 2007) (citations and quotations omitted). The

district court is required to conduct an evidentiary hearing “only if the admissible

evidence presented by petitioner, if accepted as true, would warrant relief as a

matter of law.” Id. at 560.

Wilkinson contends that the district court erred in not holding an

evidentiary hearing to consider evidence of police misconduct by Palmer dating

back to 2007. Wilkinson also submitted an affidavit in which he states that he

had not been coming from Texas at the time of his arrest, and that he has

witnesses and cell phone records to verify he was not in Texas near the date of his

arrest. R., Vol. 1 at 46. The information contained in his affidavit, Wilkinson

argues, indicates that Palmer committed perjury at Wilkinson’s suppression

hearing. According to Wilkinson, “Officer [P]almer could not have possibly

11
received a call from an informant telling him that an unidentified ‘black male’

would be traveling from Texas bringing drugs.” Aplt. Br. at 3(b).

Wilkinson’s affidavit is not new evidence because he was aware of the

information at the time of his suppression hearing and trial. See United States v.

Quintanilla, 193 F.3d 1139, 1147 (10th Cir. 1999) (holding that evidence known

to the defendant before commencement of trial did not warrant a new trial

because the evidence was not “newly discovered”). Further, evidence of Palmer’s

misconduct would not warrant relief as a matter of law. The district court’s

denial of Wilkinson’s motion to suppress can be upheld based on Poff’s own

observations, and the district court did not rely on Palmer’s testimony in

convicting Wilkinson. The district court did not abuse its discretion in finding

that Wilkinson is not entitled to an evidentiary hearing.

III

For the foregoing reasons, we AFFIRM. Wilkinson’s motion to supplement

the record is DENIED.

Entered for the Court

Mary Beck Briscoe
Chief Judge

12