Petition for Writ of Certiorari — Cody Ray Leveke, aka Cody Meyer, aka Cody Ray Meyers, Petitioner v. United States
Supreme Court briefSep 16, 2022
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APPENDIX
APPENDIX A:
United States v. Leveke, 4:20-cr-00011-001, (S.D. Iowa) (criminal
proceedings) Order entered September 28, 2020 ......................... 1
APPENDIX B:
United States v. Leveke, 4:20-cr-00011-001, (S.D. Iowa) (criminal
proceedings) selected pages from Trial Transcript Volume 1 of
2 ...................................................................................................... 7
APPENDIX C:
United States v. Leveke, 4:20-cr-00011-001, (S.D. Iowa) (criminal
proceedings) selected pages from Preliminary Instructions to the
Jury filed September 29, 2020 .................................................... 12
APPENDIX D:
United States v. Leveke, 4:20-cr-00011-001, (S.D. Iowa) (criminal
proceedings) selected pages from Trial Transcript Volume 2 of
2 .................................................................................................... 16
APPENDIX E:
United States v. Leveke, 4:20-cr-00011-001, (S.D. Iowa) (criminal
proceedings) Judgment of the United States District Court for the
Northern District of Iowa entered January 29, 2021 ................. 19
APPENDIX F:
United States v. Leveke, 21-1335 (8th Cir.) (direct criminal
appeal), opinion and judgment entered June 21, 2022 .............. 26
Case 4:20-cr-00011-JAJ-HCA Document 225 Filed 09/28/20 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
CODY RAY LEVEKE,
No. 4:20cr0011-JAJ
ORDER
Defendant.
This matter comes before the court pursuant to pro se motions to dismiss filed by
the defendant [Dkt. Nos. 34, 48, 66, 67 and 68], his pro se motions to suppress evidence
[Dkt. Nos. 76, 124] his motions for release and dismissal based on Speedy Trial Act
violations [Dkt. Nos. 91, 104, 148, 167 and 196] and other miscellaneous motions. [Dkt.
Nos. 83, 85, 86, 87, 123]
It must be noted at the outset that the status of these motions is confusing, at best.
Along the way, the defendant filed a motion to withdraw all of his pretrial motions. [Dkt.
152] He withdrew that motion [Dkt. 161]. He has accused the court of being unfair for
not ruling on his motions. And he again filed a motion to withdraw all of his motions.
[Dkt. 176] The defendant has demanded a bench trial on several occasions but refused to
make an oral voluntary and knowing waiver of his right to a jury trial when this issue was
addressed at a hearing.
The defendant's pro se motion to dismiss for lack of lack of jurisdiction [Dkt. 34] is
denied. The district court unquestionably has jurisdiction over this offense. 18 U.S.C. §
3231. The indictment, returned by a legally constituted grand jury, is sufficient on its face
and enough to call for trial on the merits.
The defendant's pro se motion to dismiss for lack of an indictment within thirty days
of arrest [Dkt. 48] is denied. The motion is predicated on the defendant's belief that his
arrest on a related state court offense started the thirty day clock for purposes of indictment
in federal court. The government's response [Dkt. 50] demonstrates that the premise of
APPENDIX A
APP. p. 001
Case 4:20-cr-00011-JAJ-HCA Document 225 Filed 09/28/20 Page 2 of 6
the motion is erroneous.
The defendant's pro se motion to dismiss for multiplicity [Dkt. 66] is denied. A
multiplicitous indictment is one that charges a single offense in multiple counts. United
States v. Webber, 255 F.3d 523, 527 (8th Cir. 2001). Here, although the indictment
charges two similar offenses on the same day, the counts are based on separate
communications, sent at separate times. This is not multiplicitous.
The defendant's motion to dismiss based on an unconstitutional statute [Dkt. 67]
appears to argue the factual merits of the defendant's defense.
Whether the
communications at issue qualify as "true threats" is a factual issue for the jury to determine.
As noted above, the indictment is sufficient on its face, alleging each of the essential
elements of these offenses. A motion to dismiss such as that filed herein is not a vehicle
to challenge the sufficiency of the government's evidence.
The defendant's motion to dismiss for malicious prosecution [Dkt. 68] is denied.
No allegation in this motion supports any claim of misconduct in the return of an indictment
against the defendant.
The defendant filed identical motions to suppress evidence. [Dkt. Nos. 76 and 124]
In these motions, the defendants contend that the government did not need to secure search
warrants for his Google accounts because he had already admitted to authorities that he
had sent the communications at issue in this case. However, this "the government didn't
need it" allegation is not cognizable under the Fourth Amendment.
The defendant has filed a number of motions pertaining to speedy trial. [Dkt. Nos.
91, 104, 148, 167 and 196] Upon return of the indictment in this case, the matter was set
for trial within seventy days as required by the Speedy Trial Act. However, in March
2020 the COVID-19 virus caused courts across the United States to suspend jury trials.
Congress passed the CARES Act permitting the court to conduct critical criminal hearings
by video conference but only with the consent of the parties. 1
This court, after
1 The defendant refused to consent to the first status conference scheduled by the court in this
2
APP. p. 002
Case 4:20-cr-00011-JAJ-HCA Document 225 Filed 09/28/20 Page 3 of 6
consultation with all of the colleagues of this court and all of the chief district judges of the
Eighth Circuit, concluded that because of the virus, in-person hearings could not be safely
conducted in this court. The court suspended jury trials until July 6, 2020. With weekly
consultation with the chief judges noted above and daily monitoring of new COVID-19
case in each of the divisions and counties of the Southern District of Iowa, the court
extended its moratorium on conducting jury trials until August 10, 2020.
On August 10, 2020, the numbers of new COVID-19 virus cases in the eastern
division and the western division of the Southern District of Iowa had subsided. That was
not true for the central division of Iowa and the court has continued the moratorium on
criminal jury trials until October 13, 2020. Adding to this problem is the fact that at one
point there were 126 inmates in the Polk County jail with the COVID-19 virus. The Polk
County jail is where the vast majority of central division detainees are held. As of the
filing of this order, there are still a handful of detainees in the Polk County jail with the
COVID-19 virus. That fact alone seriously jeopardizes the safety of the public and court
employees upon movement of Polk County jail detainees.
The defendant has demanded that his trial be conducted in another division of this
court. For that reason, the matter is moved to Davenport, Iowa with trial commencing on
September 28, 2020.
Each of these delays resulting from a continuance granted by the court on its own
motion was made because the ends of justice served by taking such action outweigh the
best interest of the public and the defendant in a speedy trial. The court has entered
administrative orders suspending jury trials between March 2020 and October 12, 2020.
These administrative orders serve as the findings that the ends of justice served by granting
such continuances outweigh the best interests of the public and the defendant in a speedy
trial.
The defendant filed a pro se motion for "admonishment" of the investigating officer
matter.
3
APP. p. 003
Case 4:20-cr-00011-JAJ-HCA Document 225 Filed 09/28/20 Page 4 of 6
in this case.
[Dkt. 123]
In support of search warrants for the defendant's Google
accounts, the defendant contends that the investigator falsely claimed that the defendant
was on the Arizona Sex Offender Registry and had been convicted of Third Degree Sexual
Abuse in Iowa. The defendant contends that his conviction is for incest and that an order
of the district court for Iowa removing the defendant from the Iowa Sex Offender Registry
requirements also means that it was a false statement for the investigator to contend that
the defendant was on the Arizona Sex Offender Registry.
In order to prevail on a challenge to a warrant affidavit pursuant to Franks v.
Delaware, 438 U.S. 154 (1978), the challenger must show (1) that a false statement
knowingly and intentionally or with reckless disregard for the truth, was included in the
affidavit and (2) that the affidavit’s remaining content is insufficient to establish probable
cause. United States v. Gladney, 48 F.3d 309, 313 (8th Cir. 1995).
To mandate an evidentiary hearing, the challenger's attack
must be more than conclusory and must be supported by more
than a mere desire to cross-examine. There must be
allegations of deliberate falsehood or of reckless disregard for
the truth, and those allegations must be accompanied by an
offer of proof. They should point out specifically the portion
of the warrant affidavit that is claimed to be false; and they
should be accompanied by a statement of supporting reasons.
Affidavits or sworn or otherwise reliable statements of
witnesses should be furnished, or their absence satisfactorily
explained. Allegations of negligence or innocent mistake are
insufficient.
Franks v. Delaware, supra, at 171.
Further, in order to mandate a hearing, the challenged statements in the affidavit
must be necessary to a finding of probable cause. United States v. Flagg, 919 F.2d 499
(8th Cir. 1990). United States v. Streeter, 907 F.2d 781, 788 (8th Cir. 1990) (contested
material must be "vital" to probable cause). It must also be remembered that although the
affidavit must contain statements that are truthful,
This does not mean "truthful" in the sense that every fact
recited in the warrant affidavit is necessarily correct. For
4
APP. p. 004
Case 4:20-cr-00011-JAJ-HCA Document 225 Filed 09/28/20 Page 5 of 6
probable cause may be founded upon hearsay and upon
information received from informants, as well as upon
information within the affiant's own knowledge that sometimes
must be garnered hastily. But surely it is to be "truthful" in
the sense that the information put forth is believed or
appropriately accepted by the affiant as true.
Franks v. Delaware, supra, at 165.
Omissions of facts are not misrepresentations unless they cast doubt on the existence
of probable cause. United States v. Parker, 836 F.2d 1080, 1083 (8th Cir. 1987). The same
analytical process used to determine whether an affidavit contains a material falsehood is
used to determine whether an omission will vitiate a warrant affidavit under Franks. United
States v. Lueth, 807 F.2d 719, 726 (8th Cir. 1986). The defendant must show that (1) the
police omitted facts with the intent to make, or in reckless disregard of whether they thereby
made, the affidavit misleading, and (2) that the affidavit, if supplemented by the omitted
information, would not have been sufficient to support a finding of probable cause. With
respect to the second element, suppression is warranted only if the affidavit as supplemented
by the omitted material could not have supported the existence of probable cause. Lueth,
supra, at 726.
The defendant has failed to allege facts sufficient to generate the need for a hearing
pursuant to Franks.
The defendant has not demonstrated the falsity of the statement
concerning his status under the Arizona sex offender registry laws. Whether his conviction
was for sexual abuse or incest is inconsequential to a finding of probable cause for the
warrants. The defendant contends that any error in the affidavit is sufficient to invalidate
the warrant. However, the defendant must demonstrate both falsity and intentional or
reckless making of a false statement. He has failed to do so.
The defendant's motion in limine [Dkt. 83] is denied. The defendant that contends
that because the offense of making a threat is complete when the threat is sent, it is irrelevant
that it is received and is irrelevant where it is received. He cites no authority for this
proposition. It is the government's obligation to prove venue and both of these challenged
5
APP. p. 005
Case 4:20-cr-00011-JAJ-HCA Document 225 Filed 09/28/20 Page 6 of 6
pieces of evidence are relevant to venue.
The defendant's motion for a pretrial conference [Dkt. 85] is granted. This will be
held following jury selection on September 28, 2020.
The defendant's motion to produce evidence [Dkt. 86] is denied. He acknowledges
receipt of discovery materials but contends that the government should produce something
showing how the communications at issue could be viewed as a threat to injure the person
of another. The documents produced will speak for themselves in this regard.
Finally, the defendant's motion for an ex parte hearing for him to plead additional
issues [Dkt. 87] is denied. The court held an ex parte hearing to determine whether to
subpoena witnesses requested by him. At that hearing, the court learned of his defenses and
the relevance of his requested witnesses. Those issues were resolved in an ex parte order
filed under seal herein. [Dkt. 212]
IT IS SO ORDERED.
DATED this 28th day of September, 2020.
6
APP. p. 006
1
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION
- - - - - - - - - - - - - X
UNITED STATES OF AMERICA, :
:
Plaintiff,
:
:
vs.
:
Case No. 4:20-cr-11
:
CODY RAY LEVEKE a/k/a CODY:
TRIAL TRANSCRIPT
MEYER a/k/a CODY MEYERS, :
Volume 1 of 2
:
Defendant.
:
- - - - - - - - - - - - - X
Courtroom 242, Second Floor
U.S. Courthouse
131 East Fourth Street
Davenport, Iowa
Monday, September 28, 2020
8:58 a.m.
BEFORE:
THE HONORABLE JOHN A. JARVEY, Chief Judge
APPEARANCES:
For the Plaintiff:
JASON T. GRIESS, ESQ.
United States Attorney's Office
U.S. Courthouse Annex
110 East Court Avenue, Suite 286
Des Moines, Iowa 50309-5053
MACKENZIE BENSON TUBBS, ESQ.
United States Attorney's Office
U.S. Courthouse Annex
110 East Court Avenue, Suite 286
Des Moines, Iowa 50309-5053
For the Defendant:
CODY RAY LEVEKE, pro se
JOSEPH D. HERROLD, ESQ.
Federal Public Defender's Office
Capital Square, Suite 340
400 Locust Street
Des Moines, Iowa 50309-2360
TONYA R. GERKE, CSR, RMR, CRR
United States Courthouse
123 East Walnut Street, Room 197
Des Moines, Iowa 50309
APPENDIX B
APP. p. 007
76
1
jurors that they are on the jury and have them report at 8:30 in
2
the morning.
3
Okay.
Then, finally, tomorrow for the beginning of
4
the trial, the most important thing to get through first is the
5
jury instructions.
6
read -- will be read.
7
8
Those are the first things that have been
Mr. Leveke, do you have a copy of the jury
instructions handy?
We'll get you another set if you need one.
9
MR. LEVEKE:
No.
It's right here.
10
THE COURT:
On the front of it -- what is the date on
11
the front of there?
12
MR. LEVEKE:
September 25 draft.
13
THE COURT:
All right.
So in the jury instructions
14
after hearing from both sides, there's a few things I've added
15
from the original draft that was filed in this matter.
16
a paragraph about the venue because I can tell from the
17
defendant's filings that venue is an important issue, so I
18
included a venue instruction in there.
I included the paragraph
19
on page 5 entitled Intent or Knowledge.
Knowledge is an element
20
of the offense, and so I've defined knowledge in the very
21
standard way that we do that.
22
time ago I included the "on or about" paragraph.
23
other concerns the Government has?
24
25
MS. TUBBS:
I added
At the Government's request some
No, Your Honor.
Are there
You have addressed our
other concerns.
APP. p. 008
77
1
THE COURT:
Mr. Leveke has asked for a definition of
2
threat, and the model instruction doesn't include it nor do
3
the -- nor does the commentary say you should or shouldn't.
4
haven't checked precisely his definition of threat.
5
object to the word threat being defined?
6
MS. TUBBS:
I do, Your Honor.
I
Do you
The cases, like you
7
said, use the model instruction, which does not define threat or
8
give a further definition of threat.
9
the jury to decide whether this communication was a threat using
10
the factors set forth in the model instruction.
11
12
13
THE COURT:
It is defined and up to
What is it about his definition of a
threat that concerns you?
MS. TUBBS:
I do not have his definition directly in
14
front of me, but if I recall, it relies on one specific case's
15
interpretation of threat.
16
17
18
THE COURT:
Okay.
Mr. Leveke, your concerns about the
jury instructions?
MR. LEVEKE:
Yeah, Judge.
My biggest concern is that
19
nowhere in the jury instructions does it define threat, and the
20
case that you can look to see what the definition of a threat
21
is -- it's the cross-burning case, Virginia versus Black, where
22
the Supreme Court defines threat as a serious expression of
23
intent to commit unlawful violence.
24
we're going to have a trial and decide if something is a threat
25
or not if we don't have a definition of what a threat is.
And I -- I have no idea how
We're
APP. p. 009
78
1
going to ask 12 people is this a threat without telling them
2
what they're looking for, you know.
3
just I don't know how they're -- I mean, that's what a threat
4
is.
5
listed in the indictment don't express intent.
6
express intent.
7
intent.
8
for, you know?
9
I mean, I -- I can't --
You know, it's an expression of intent.
The two phrases
My e-mails don't
I mean, you have to have an expression of
The jury has to be instructed on what they're looking
THE COURT:
The element says it must contain a threat
10
to injure another person and so the only other concept that your
11
definition requests is the concept of seriousness?
12
MR. LEVEKE:
It has to be serious.
It has to be an
13
expression of intent, and it has to express unlawful violence.
14
I mean, those are the -- those are the --
15
THE COURT:
Yeah.
The third element specifically
16
addresses element 4, the purpose of issuing a threat is with
17
knowledge that it will be viewed as a threat.
18
that tonight.
19
20
I'll consider
Other concerns about the jury instructions,
Mr. Leveke?
21
MR. LEVEKE:
22
don't define threat.
23
THE COURT:
No.
That was my concern is that they
Okay.
If I don't include it in the
24
preliminary set, I can always add it to the final set.
25
Typically we don't have any of this kind of detail in the
APP. p. 010
79
1
preliminary set, but this is -- this is a short trial.
I think
2
it's helpful to define all of the terms ahead of time, and --
3
but we always have the final set in which to give further
4
instructions.
I note there's a typographical error in the first
5
6
element, a threat to "injury" another person.
7
that.
I'll correct
What else before we begin tomorrow morning?
8
9
from the Government?
10
MS. TUBBS:
Anything
Your Honor, would you like us to make our
11
Frye record about the prior plea offers that have been made to
12
Mr. Leveke?
THE COURT:
13
That's fine.
Sure.
I don't care, and a
14
judge is not involved in plea negotiations.
15
involved.
16
they do this on the record before a trial so that somebody
17
doesn't come back later and say they never offered me anything.
I don't want to be involved.
MS. TUBBS:
18
I will not become
But they do this --
On May 21st, 2020, the Government offered
19
a -- the defendant a plea to Count 2 in exchange for a dismissal
20
of Count 1.
21
received that offer on or about June 1st and rejected that
22
offer.
23
The defendant responded by letter that he had
On July 10th, the Government offered again a plea to
24
Count 2, to dismiss Count 1, this time adding the provision
25
under 11(c)(1)(B) that the parties would jointly recommend no
APP. p. 011
Case 4:20-cr-00011-JAJ-HCA Document 234 Filed 09/29/20 Page 1 of 15
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
No. 4:20-cr-0011-JAJ
vs.
CODY RAY LEVEKE, aka
CODY MEYER, aka
CODY MEYERS,
PRELIMINARY INSTRUCTIONS
TO THE JURY
Defendant.
APPENDIX C
APP. p. 012
Case 4:20-cr-00011-JAJ-HCA Document 234 Filed 09/29/20 Page 4 of 15
PRELIMINARY INSTRUCTION NO. 2
ELEMENTS OF THE OFFENSES
In order to help you understand the evidence, I will now give you a brief summary
of the elements of the crimes charged, each of which the government must prove beyond a
reasonable doubt to make its case.
COUNT 1:
INTERSTATE COMMUNICATION OF A THREAT
Count 1 of the Indictment charge that:
On or about September 3, 2019 at
approximately 7:37 a.m. in the Southern District of Iowa, the defendant, Cody Ray Leveke,
did knowingly transmit in interstate commerce a communication containing language the
defendant knew to be a threat, and knowing that the communication would be viewed as a
threat to injure the person or persons of another, in that defendant sent an email to H.Q., an
Iowa state senator, and stated in part: "I'm angry enough to pull a mass shooting down at
the State House."
COUNT 2:
INTERSTATE COMMUNICATION OF A THREAT
Count 2 of the Indictment charge that:
On or about September 3, 2019 at
approximately 6:34 p.m. in the Southern District of Iowa, the defendant, Cody Ray Leveke,
did knowingly transmit in interstate commerce a communication containing language the
defendant knew to be a threat, and knowing that the communication would be viewed as a
threat to injure the person or persons of another, in that defendant sent an email to H.Q., an
Iowa state senator, and stated in part: "The 2nd Amendment exisits [sic] so we can kill
politicians when they dont [sic] act in accordance to law."
The crime of interstate communication of a threat, as charged in Counts 1 and 2 of
the Indictment, has three elements, which are:
First, that on or about September 3, 2019, the defendant knowingly sent a
communication containing a threat to injure another person;
3
APP. p. 013
Case 4:20-cr-00011-JAJ-HCA Document 234 Filed 09/29/20 Page 5 of 15
Second, the communication was sent in interstate commerce (the parties have
stipulated or agreed that the communications at issue in this case were sent in interstate
commerce); and
Third, the defendant sent the communication for the purpose of issuing a threat or
with knowledge that the communication would be viewed as a threat.
In determining whether the defendant's communication was sent for the purpose of
issuing a threat or with knowledge that the communication would be viewed as a threat,
you may consider all the circumstances surrounding the making of the communication.
For example, you may consider the language, specificity, and frequency of the threat; the
context in which the threat was made; the relationship between the defendant and the threat
recipient; the recipient's response; any previous threats made by the defendant; and,
whether you believe the person making the statement was serious, as distinguished from
mere idle or careless talk, exaggeration, or something said in a joking manner.
It is not necessary for the government to prove that the defendant intended to or had
the ability to carry out the threat.
To send a communication in "interstate commerce" means to send it from a place in
one state to a place in another state.
The communication containing the threat can be handwritten, typed, oral,
telephonic, e-mail, text message, or any other form of electronic communication.
For you to find the defendant guilty of this crime, the government must prove all of
these elements beyond a reasonable doubt.
Otherwise you must find the defendant not
guilty.
VENUE
The government must prove it is more likely true than not true that each offense was
begun, continued or completed in the Southern District of Iowa.
You decide these facts
by considering all of the evidence and deciding what evidence is more believable. This is
4
APP. p. 014
Case 4:20-cr-00011-JAJ-HCA Document 234 Filed 09/29/20 Page 6 of 15
a lower standard than proof beyond a reasonable doubt.
The requirement of proof beyond
a reasonable doubt applies to all other issues in the case.
All of Story County and Polk
County, Iowa are within the Southern District of Iowa.
INTENT OR KNOWLEDGE
Intent or knowledge may be proved like anything else.
An act is done knowingly
if the defendant is aware of the act and does not act through ignorance, mistake, or accident.
You may consider evidence of the defendant’s words, acts, or omissions, along with all the
other evidence, in determining the defendant’s knowledge or intent.
You may, but are
not required to, infer that a person intends the natural and probable consequences of acts
knowingly done or knowingly omitted.
The government is not required to prove that the
defendant knew that his actions were unlawful.
5
APP. p. 015
85
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF IOWA
CENTRAL DIVISION
- - - - - - - - - - - - - X
UNITED STATES OF AMERICA, :
:
Plaintiff,
:
:
vs.
:
Case No. 4:20-cr-11
:
CODY RAY LEVEKE a/k/a CODY:
TRIAL TRANSCRIPT
MEYER a/k/a CODY MEYERS, :
Volume 2 of 2
:
Defendant.
:
- - - - - - - - - - - - - X
Courtroom 242, Second Floor
U.S. Courthouse
131 East Fourth Street
Davenport, Iowa
Tuesday, September 29, 2020
8:54 a.m.
BEFORE:
THE HONORABLE JOHN A. JARVEY, Chief Judge
APPEARANCES:
For the Plaintiff:
JASON T. GRIESS, ESQ.
United States Attorney's Office
U.S. Courthouse Annex
110 East Court Avenue, Suite 286
Des Moines, Iowa 50309-5053
MACKENZIE BENSON TUBBS, ESQ.
United States Attorney's Office
U.S. Courthouse Annex
110 East Court Avenue, Suite 286
Des Moines, Iowa 50309-5053
For the Defendant:
CODY RAY LEVEKE, pro se
JOSEPH D. HERROLD, ESQ.
Federal Public Defender's Office
Capital Square, Suite 340
400 Locust Street
Des Moines, Iowa 50309-2360
TONYA R. GERKE, CSR, RMR, CRR
United States Courthouse
123 East Walnut Street, Room 197
Des Moines, Iowa 50309
APPENDIX D
APP. p. 016
219
1
relevant.
2
THE COURT:
Good.
3
MR. LEVEKE:
Yeah.
So no -- I don't have anything
Okay.
Return to your chair then.
4
else to say.
5
THE COURT:
6
Mr. Leveke, do you have additional evidence you wish
7
to present?
8
MR. LEVEKE:
I rest, Your Honor.
9
THE COURT:
The defense rests, meaning that Mr. Leveke
10
has completed his presentation of the evidence.
11
Is there any rebuttal evidence, Mr. Griess?
12
MR. GRIESS:
No, Your Honor.
13
THE COURT:
So we've got two important parts left in
14
the trial.
We're going right to them.
We have the closing
15
arguments of the lawyers.
16
further pieces of instruction.
17
preliminary instructions I gave you were very exhaustive.
18
covers what I had hoped to cover before and after the trial, but
19
a couple more pieces of instructions on the law.
20
very easy to determine when Mr. Leveke was presenting evidence
21
and when he was not.
22
not -- the words coming out of his mouth are not evidence.
23
he was on the witness stand, that was evidence.
24
judge the testimony of the defendant in the same way that you
25
would judge the testimony of any other witness.
I've got a couple pieces of -It turns out that the
It
It made it
When he sits at the counsel table, he is
When
And you were to
Suggestions
APP. p. 017
220
1
were given to you -- a nonexhaustive list of suggestions were
2
given to you on pages 6 and 7 of the preliminary instructions.
3
There was some discussion about the First Amendment.
4
You need not concern yourself with the First Amendment.
5
Government proves beyond a reasonable doubt that the defendant
6
committed the crimes in Count 1 or 2, then -- that kind of
7
speech is not protected by our First Amendment, so if the
8
Government proves its case, the First Amendment doesn't come
9
into play because it's not protected -- that kind of speech is
10
not protected by the First Amendment.
11
prove its case, then you don't have to consider the First
12
Amendment in that situation either.
13
If the
If the Government doesn't
I haven't let the Government defend the actions of the
14
Tempe Police Department because, as I told you earlier,
15
testimony about what happened in other places like Tempe,
16
Arizona, was only relevant for him to be able to explain the
17
context in which he made the statements.
18
going to have a discussion here, we're not going to call in
19
witnesses for the Government now about what happened in Tempe
20
and whether it was exactly true or not true or any of that.
21
was admitted so that he could tell you the context in which he
22
made the statements.
23
So -- so we're not
It
Similarly, there's nothing I need to instruct you
24
about about the Second Amendment to the United States
25
Constitution.
APP. p. 018
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APPENDIX E
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 21-1335
___________________________
United States of America
Plaintiff - Appellee
v.
Cody Ray Leveke, also known as Cody Meyer, also known as Cody Ray Meyers
Defendant - Appellant
____________
Appeal from United States District Court
for the Southern District of Iowa - Central
____________
Submitted: January 14, 2022
Filed: June 21, 2022
____________
Before SMITH, Chief Judge, WOLLMAN and ERICKSON, Circuit Judges.
____________
ERICKSON, Circuit Judge.
Following a series of trial delays due to the COVID-19 pandemic, a jury
convicted Cody Leveke of two counts of interstate communication of a threat, in
Appellate Case: 21-1335
Page: 1
Date Filed: 06/21/2022 Entry ID: 5169176
APPENDIX F
APP. p. 026
violation of 18 U.S.C. § 875(c). The district court1 sentenced him to a term of 60
months in prison. Leveke appeals and we affirm.
I.
BACKGROUND
Leveke, a registered sex offender, spent the better part of a decade trying to
be removed from the Iowa sex offender registry. In 2009, Iowa State Senator
Herman Quirmbach agreed to try and help Leveke, who was then residing in
Arizona. Senator Quirmbach repeatedly introduced bills to amend the law to allow
out-of-state offenders the same opportunity as in-state offenders to petition for
removal from the Iowa registry; however, his efforts were unsuccessful.
On September 3, 2019, Leveke sent Senator Quirmbach two emails with the
subject line, “Mass Shooting of the Iowa Legislature,” and left a voicemail on the
senator’s home phone. In his first email, Leveke complained about law enforcement
unfairly targeting him and an invalid law being “still on the books.” He wrote, “I’m
angry enough to pull a mass shooting down at the State House.” Leveke asserted
the legislature was in violation of the Constitution and requested an explanation for
the “illegal behavior” as well as the names of those responsible for “holding the bill
up.” He told Senator Quirmbach that those responsible “should live in fear.”
About an hour later, Senator Quirmbach received an angry voicemail on his
home phone from Leveke. Among other things, Leveke told Quirmbach that the
senator could not violate the Constitution and get away with it. Concerned by the
email and voicemail, Senator Quirmbach immediately notified law enforcement and
the senate minority leader’s office. Legislative administrative staff member, Debbie
Kattenhorn, then informed the entire Iowa Legislature and capitol security about
Leveke’s messages.
1
The Honorable John A. Jarvey, then Chief Judge, United States District Court
for the Southern District of Iowa, now retired.
-2Appellate Case: 21-1335
Page: 2
Date Filed: 06/21/2022 Entry ID: 5169176
APP. p. 027
That evening, Senator Quirmbach received a second email from Leveke under
the same subject line of “Mass Shooting of the Iowa Legislature.” This time, Leveke
“order[ed]” the “Iowa Legislature to stand down with any attempts to violate the
civil rights of anyone” and demanded that the existing law be taken off the books.
He wrote that he believed the Second Amendment exists “so we can kill politicians”
for not acting in accordance with the law. Leveke further stated that “the legislature
deserves a violent response at this point.” He also attached an article about a mass
shooting in Texas that had been reported just hours before.
Leveke was indicted with two counts of interstate communication of a threat,
in violation of 18 U.S.C. § 875(c). The course of the prosecution was impacted by
the COVID-19 pandemic. Leveke’s trial, originally set for March 30, 2020, in the
Central Division of the Southern District of Iowa, was cancelled on March 16, 2020,
when the court issued an administrative order postponing all jury trials in the
Southern District of Iowa from March 16, 2020, until May 4, 2020, on ends of justice
grounds related to the pandemic and attendant health risks. See U.S. Dist. Court for
the S. Dist. of Iowa, Pub. Admin. Order No. 20-AO-3-P (Mar. 16, 2020) (citing 18
U.S.C. § 3161(h)(7)(A)).
While Leveke made a number of pro se requests to have his case proceed to
trial, the relief he was seeking was not entirely plain. At one point, he moved for a
bench trial while reserving his right to a jury trial. During a status conference,
Leveke demanded a jury trial. Subsequently, he consented to a bench trial but
conditioned his consent upon certain circumstances and simultaneously insisted on
preserving his right to a jury trial. A couple months later, Leveke indicated he
wanted a bench trial but refused to waive his right to a jury trial. Leveke requested
his case be moved to another division that was conducting jury trials. Ultimately,
the district court transferred Leveke’s case to the Eastern Division and ordered a jury
trial to commence on September 29, 2020.
Leveke’s jury trial took place on September 29, 2020. Pursuant to a series of
administrative orders, no jury trials were allowed in the Central Division—where
-3Appellate Case: 21-1335
Page: 3
Date Filed: 06/21/2022 Entry ID: 5169176
APP. p. 028
Leveke’s case was originally set to take place—until October 12, 2020. See, e.g.,
U.S. Dist. Court for the S. Dist. of Iowa, Pub. Admin. Order No. 20-AO-19-P (Sept.
3, 2020). The court, after consulting with the United States Attorney, Federal Public
Defender, and others, agreed the delay was proper given that “the number of new
cases of COVID-19 in the Central Division ha[d] risen to the highest levels to date.”
Id. Each time the court delayed Leveke’s jury trial, it found the time was excludable
under the Speedy Trial Act.
The jury found Leveke guilty, and he was sentenced to a term of 60 months’
imprisonment. Leveke appealed and the clerk appointed counsel to represent him.
II.
DISCUSSION
1.
Sufficiency of the Evidence
At trial, Senator Quirmbach and Kattenhorn testified that they believed
Leveke’s messages posed a real and imminent threat. Leveke also testified, claiming
his statements were hyperbole and he had no intention of killing anyone. He told
the jury that his messages were meant to get the attention of the Iowa Legislature.
On appeal, Leveke contends the government did not have sufficient evidence to
prove he made “true threats” because his statements were ambiguous and/or political
hyperbole.
“We review the sufficiency of the evidence de novo, viewing the evidence and
credibility determinations in the light most favorable to the jury’s verdict and
reversing only if no reasonable jury could have found the defendant guilty.” United
States v. Ganter, 3 F.4th 1002, 1004 (8th Cir. 2021). “A conviction may be based
on circumstantial as well as direct evidence. The evidence need not exclude every
reasonable hypothesis except guilt.” United States v. Seals, 915 F.3d 1203, 1205
(8th Cir. 2019) (quoting United States v. Tate, 633 F.3d 624, 628 (8th Cir. 2011))
(internal quotation marks omitted).
-4Appellate Case: 21-1335
Page: 4
Date Filed: 06/21/2022 Entry ID: 5169176
APP. p. 029
This Court has defined a “true threat” as “a statement that a reasonable
recipient would have interpreted as a serious expression of an intent to harm or cause
injury to another.” Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616, 624 (8th
Cir. 2002) (en banc). When determining whether a reasonable recipient would have
found the communication conveyed an intent to cause harm or injury, the factfinder
may consider:
1) the reaction of those who heard the alleged threat; 2) whether the
threat was conditional; 3) whether the person who made the alleged
threat communicated it directly to the object of the threat; 4) whether
the speaker had a history of making threats against the person
purportedly threatened; and 5) whether the recipient had a reason to
believe that the speaker had a propensity to engage in violence.
Id. at 623.
Our precedent establishes that the speaker does not have to intend to carry out
the threat in order for the speech to fall outside of the First Amendment’s protections.
See United States v. Ivers, 967 F.3d 709, 720 (8th Cir. 2020) (noting whether the
defendant had any intention of acting on the threat is irrelevant); United States v.
Mabie, 663 F.3d 322, 333 (8th Cir. 2011) (“The government need not prove that
Mabie had a subjective intent to intimidate or threaten in order to establish that his
communications constituted true threats.”).
Contrary to Leveke’s argument that his statements were mere political
hyperbole, a jury could have reasonably concluded that Leveke’s messages
constituted a true threat of present or future violence and that he intended to
communicate a threat. Section 875(c) is violated if the government proves the
defendant communicated a true threat and “transmitted [that] communication for the
purpose of issuing a threat or with knowledge that the communication would be
viewed as a threat.” United States v. Dierks, 978 F.3d 585, 591 (8th Cir. 2020)
(quoting Elonis v. United States, 575 U.S. 723, 740 (2015)) (cleaned up). Here,
Leveke’s statements were neither ambiguous nor ambivalent. Leveke explicitly
-5Appellate Case: 21-1335
Page: 5
Date Filed: 06/21/2022 Entry ID: 5169176
APP. p. 030
threatened to conduct a mass shooting of the Iowa Legislature for the lawmakers’
alleged constitutional violation. He communicated his intent directly to Senator
Quirmbach. Leveke expressed a belief that the Second Amendment was created so
politicians (and perhaps others) may be killed for failing to act in accordance with
the law. Both Senator Quirmbach and Kattenhorn testified that they found Leveke’s
statements to be threatening and frightening. Leveke testified that he wrote his
emails to get the Senate’s attention to provoke action. Leveke’s statements were
objectively threatening, and neither ambiguous nor political hyperbole. The
evidence is sufficient to satisfy the elements required for convictions under § 875(c).
2.
Jury Instructions
Leveke contends the jury instructions were erroneous because (1) they failed
to define a “true threat” as a statement made by a defendant only when he
subjectively intends to threaten the victim(s), (2) they did not require the jury to
consider whether the statements were objectively “true threats,” and (3) the court
issued a sua sponte instruction regarding the First Amendment.
Before the district court, Leveke raised only one of these three challenges.
Because Leveke challenged the subjective intent instruction below and on appeal,
we review that argument for abuse of discretion. See United States v. Wilkins, 25
F.4th 596, 600 (8th Cir. 2022). We review Leveke’s other arguments for plain error.
See United States v. Spencer, 998 F.3d 813, 818 (8th Cir. 2021). We will reverse
only if the error was not harmless. Dierks, 978 F.3d at 591.
At trial, Leveke argued that a statement constitutes a “true threat” only if the
defendant actually intended to commit unlawful violence against the object of the
threat. Leveke’s argument misstates the law. See id. at 592 (stating § 875(c)
requires a subjective finding of intent to send a threat or knowledge that the
communication could be viewed as a threat plus an objective finding that the
communication was threatening); see also Ivers, 967 F.3d at 720–21; Mabie, 663
F.3d at 333. Even assuming the district court erred by not making the objective
-6Appellate Case: 21-1335
Page: 6
Date Filed: 06/21/2022 Entry ID: 5169176
APP. p. 031
component of § 875(c) clearer in the instructions, any error is harmless because
Leveke’s statements were objectively threatening, and a rational jury would have
found Leveke guilty beyond a reasonable doubt absent the purported error. See
Dierks, 978 F.3d at 592.
As to Leveke’s final claim regarding the court’s sua sponte instruction about
the applicability of the First Amendment, Leveke repeatedly claimed his emails were
not threats but constitutionally protected political hyperbole. He specifically
testified: “I can say whatever I want as long as it’s not a true threat, and this ain’t a
true threat.” In response to the testimony and without objection, the court told the
jury that it need not concern itself with the First Amendment regardless of whether
the government proved its case. “We will not find error when the jury instruction
fairly and adequately submitted the issue to the jury and will only reverse when the
ailing instruction by itself so infected the entire trial that the resulting conviction
violates due process.” United States v. Mink, 9 F.4th 590, 610–11 (8th Cir. 2021)
(cleaned up). Because we find that, when taken as a whole, the instructions
sufficiently articulated the elements for the charges and the matters were fairly and
adequately submitted to the jury, there was no reversible error.
3.
Sufficiency of the Indictment
Leveke has submitted a pro se supplemental brief in which he argues the
indictment failed to state an essential element of his offense: that a statement may
only be considered a true threat if a reasonable person would interpret that statement
as a threat. While we generally do not accept pro se briefs when a party is
represented by counsel, United States v. Parks, 902 F.3d 805, 815 (8th Cir. 2018),
we may quickly dispose of Leveke’s argument. “An indictment is legally sufficient
on its face if it contains all of the essential elements of the offense charged, fairly
informs the defendant of the charges against which he must defend, and alleges
sufficient information to allow a defendant to plead a conviction or acquittal as a bar
to a subsequent prosecution. United States v. Sholley-Gonzalez, 996 F.3d 887, 893
(8th Cir. 2021) (cleaned up). The indictment pleaded the essential elements for
-7Appellate Case: 21-1335
Page: 7
Date Filed: 06/21/2022 Entry ID: 5169176
APP. p. 032
§ 875(c) offenses. See Elonis, 575 U.S. at 732, 740 (stating elements of 18 U.S.C.
§ 875(c) include: (1) a communication transmitted in interstate commerce, (2) that
contains a threat, and (3) which is transmitted for the purpose of issuing a threat or
with knowledge the communication will be viewed as a threat).
4.
Right to a Speedy Trial
When a defendant brings a speedy trial challenge under both the Speedy Trial
Act and the Sixth Amendment, we review the claims separately. United States v.
Johnson, 990 F.3d 661, 666 (8th Cir. 2021). We review the “district court’s findings
of fact for clear error and its legal conclusions de novo.” United States v. FloresLagonas, 993 F.3d 550, 562–63 (8th Cir. 2021).
A.
The Speedy Trial Act
While the Speedy Trial Act provides that the trial of a criminal defendant who
has pled not guilty must begin within seventy days from the date of the indictment
or arraignment, whichever is later, the Act excludes certain periods of delay from
this calculation. 18 U.S.C. § 3161(c)(1) & 3161(h). One such excludable period is
when the judge overseeing the trial grants a continuance “on the basis of his findings
that the ends of justice served by taking such action outweigh the best interest of the
public and the defendant in a speedy trial.” Id. § 3161(h)(7)(A).
Leveke asserts the district court unlawfully used the “ends of justice”
provision to postpone all jury trials due to the COVID-19 pandemic without
consideration as to whether relatively straight-forward trials could be held. He
argues his jury trial was not especially complex, had limited witnesses, and revolved
around the interpretation of two emails and thus should have occurred within seventy
days of his indictment. This Circuit has not yet decided whether the “ends of justice”
may be properly invoked to delay jury trials due to the COVID-19 pandemic. The
Ninth Circuit and Sixth Circuit have generally answered this question in the
affirmative. See United States v. Olsen, 21 F.4th 1036, 1044–47, 1049 (9th Cir.
-8Appellate Case: 21-1335
Page: 8
Date Filed: 06/21/2022 Entry ID: 5169176
APP. p. 033
2022) (per curiam) (announcing certain factors district courts should consider when
granting trial continuances due to the COVID-19 pandemic and holding the district
court erred by dismissing the defendant’s indictment with prejudice); United States
v. Roush, No. 21-3820, 2021 WL 6689969, at *2 (6th Cir. Dec. 7, 2021), cert.
denied, 142 S. Ct. 1187 (2022) (determining the district court did not abuse its
discretion when it found postponing or limiting jury trials during the COVID-19
outweighed the defendant’s right to a speedy trial).
Here, the district court issued numerous administrative orders explaining how
and why the COVID-19 pandemic was interrupting jury trials in the entire district.
See, e.g., U.S. Dist. Court for the S. Dist. of Iowa, Pub. Admin. Order No. 20-AO8-P (Apr. 8, 2020) (explaining the continuances were necessary given the severity
of the risk posed to the public and recommendations from the Centers for Disease
Control and Prevention, among other reasons). As COVID-19 infection rates in the
surrounding counties fluctuated, so too did the availability of jury trials. Compare
U.S. Dist. Court for the S. Dist. of Iowa, Pub. Admin. Order No. 20-AO-14-P (June
29, 2020) (reopening all divisions other than the Central Division), with Admin.
Order No. 20-AO-19-P (suspending jury trials in the Central Division due to recordhigh rates of infection and an “extraordinary outbreak” in the Polk County Jail).
Aside from general administrative orders, the court also made findings relating to
Leveke’s individual case. While responding to Leveke’s litany of motions, the
district court elaborated on COVID-19’s disruption to the entire judicial system and
how Leveke’s jury trial could not have taken place sooner given the safety hazards
posed by the rising COVID-19 infection rate in Leveke’s area. It is evident the
district court considered the factors in § 3161(h)(7)(B) and did not err in continuing
Leveke’s jury trial under § 3161(h)(7)(A).
While Leveke contends his trial could have been held sooner because he
requested a bench trial, the record demonstrates Leveke continually waffled on his
desire to have a bench trial and did not waive his right to a jury trial. During the
status conference shortly before Leveke’s desired date for a bench trial, the district
court went through in-detail with Leveke his right to a jury trial and waiver of that
-9Appellate Case: 21-1335
Page: 9
Date Filed: 06/21/2022 Entry ID: 5169176
APP. p. 034
right. The court informed Leveke that a conditional waiver would not be accepted
since trial was only four days away and withdrawal of a waiver would be unworkable
for the prosecution and its witnesses, not to mention the difficulty of summoning a
jury on such short notice. Armed with this information, Leveke refused to
unconditionally waive his right to a jury trial. Trial commenced a few weeks later.
On this record, the district court did not abuse its discretion in not accepting Leveke’s
conditional waiver. See Zemunski v. Kenney, 984 F.2d 953, 954 (8th Cir. 1993)
(finding a motion to withdraw a jury waiver may be untimely and properly denied if
it would “unduly interfere with or delay the proceedings”) (cleaned up).
Leveke also contends the district court should have granted his initial request
sooner to move his trial to another division where jury trials had resumed. Criminal
defendants have no constitutional right to be tried in a particular division within the
district and state where the alleged crime took place. United States v. Worthey, 716
F.3d 1107, 1112 (8th Cir. 2013). “The court must set the place of trial within the
district with due regard for the convenience of the defendant, any victim, and the
witnesses, and the prompt administration of justice.” Fed. R. Crim. P. 18. Because
district judges have broad discretion to determine where to hold the trial, a defendant
must show abuse of that discretion or prejudice. United States v. Stanko, 528 F.3d
581, 584 (8th Cir. 2008).
The government resisted Leveke’s request to move the case to another
division, stating its witnesses were located in the Central Division and Leveke’s
transportation to another detention facility would potentially spread COVID-19.
While Leveke repeated his request at a status conference on September 4, 2020, he
proceeded to make indefinite statements about wanting a jury trial or a bench trial.
Ultimately, the court granted Leveke’s request to move divisions on September 16,
2020, ordering that a jury trial would take place in the Eastern Division on September
29, 2020. The trial took place on that date in that division. We find no abuse of
discretion in the court’s timing of granting Leveke’s request to change divisions.
-10Appellate Case: 21-1335
Page: 10
Date Filed: 06/21/2022 Entry ID: 5169176
APP. p. 035
Additionally, Leveke has not shown prejudice caused by the delay. While he
points to a longer period of detention, repossession of his vehicle, increased pretrial
anxiety, and an in-custody assault, none of these circumstances demonstrate he was
deprived of an opportunity to properly defend himself at trial. See id.
B.
The Sixth Amendment
To show a Sixth Amendment speedy trial violation, the defendant must allege
the interval between accusation and trial has crossed a line from ordinary to
presumptively prejudicial delay. United States v. Saguto, 929 F.3d 519, 523 (8th
Cir. 2019) (quoting United States v. Aldaco, 477 F.3d 1008, 1019 (8th Cir. 2007))
(cleaned up). If the defendant makes that threshold showing, then we proceed to
analyze the following factors: “[l]ength of delay, the reason for the delay, the
defendant’s assertion of his right, and prejudice to the defendant.” Flores-Lagonas,
993 F.3d at 563 (quoting Barker v. Wingo, 407 U.S. 514, 530 (1972)) (internal
quotation marks omitted).
Leveke’s constitutional claim fails because he has not shown that a ninemonth delay was presumptively prejudicial. See United States v. Walker, 840 F.3d
477, 485 (8th Cir. 2016) (determining eleven-and-a-half-month delay meets
threshold for first factor, but barely). Having failed to satisfy the first factor, our
analysis ends. See United States v. Titlbach, 339 F.3d 692, 699 (8th Cir. 2003)
(stating if no presumptively prejudicial delay exists, the court need not examine the
remaining three Barker factors).
III.
CONCLUSION
For the foregoing reasons, we affirm Leveke’s convictions.
______________________________
-11Appellate Case: 21-1335
Page: 11
Date Filed: 06/21/2022 Entry ID: 5169176
APP. p. 036
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
SENT TO CLIENT
Jun 22 2022
___________________
No: 21-1335
___________________
by:
kelly_jensen
United States of America
Plaintiff - Appellee
v.
Cody Ray Leveke, also known as Cody Meyer, also known as Cody Ray Meyers
Defendant - Appellant
______________________________________________________________________________
Appeal from U.S. District Court for the Southern District of Iowa - Central
(4:20-cr-00011-JAJ-1)
______________________________________________________________________________
JUDGMENT
Before SMITH, Chief Judge, WOLLMAN, and ERICKSON, Circuit Judges.
This appeal from the United States District Court was submitted on the record of the
district court and briefs of the parties.
After consideration, it is hereby ordered and adjudged that the judgment of the district
court in this cause is affirmed in accordance with the opinion of this Court.
June 21, 2022
Order Entered in Accordance with Opinion:
Clerk, U.S. Court of Appeals, Eighth Circuit.
____________________________________
/s/ Michael E. Gans
Appellate Case: 21-1335
Page: 1
Date Filed: 06/21/2022 Entry ID: 5169184
APP. p. 037
Adopted April 15, 2015
Effective August 1, 2015
Revision of Part V of the Eighth Circuit Plan to Implement the Criminal Justice Act of
1964.
V. Duty of Counsel as to Panel Rehearing, Rehearing En Banc, and Certiorari
Where the decision of the court of appeals is adverse to the defendant in whole or in part, the
duty of counsel on appeal extends to (1) advising the defendant of the right to file a petition for
panel rehearing and a petition for rehearing en banc in the court of appeals and a petition for writ
of certiorari in the Supreme Court of the United States, and (2) informing the defendant of
counsel's opinion as to the merit and likelihood of the success of those petitions. If the defendant
requests that counsel file any of those petitions, counsel must file the petition if counsel
determines that there are reasonable grounds to believe that the petition would satisfy the
standards of Federal Rule of Appellate Procedure 40, Federal Rule of Appellate Procedure 35(a)
or Supreme Court Rule 10, as applicable. See Austin v. United States, 513 U.S. 5 (1994) (per
curiam); 8th Cir. R. 35A.
If counsel declines to file a petition for panel rehearing or rehearing en banc requested by the
defendant based upon counsel's determination that there are not reasonable grounds to do so,
counsel must so inform the court and must file a written motion to withdraw. The motion to
withdraw must be filed on or before the due date for a petition for rehearing, must certify that
counsel has advised the defendant of the procedures for filing pro se a timely petition for
rehearing, and must request an extension of time of 28 days within which to file pro se a petition
for rehearing. The motion also must certify that counsel has advised the defendant of the
procedures for filing pro se a timely petition for writ of certiorari.
If counsel declines to file a petition for writ of certiorari requested by the defendant based on
counsel's determination that there are not reasonable grounds to do so, counsel must so inform
the court and must file a written motion to withdraw. The motion must certify that counsel has
advised the defendant of the procedures for filing pro se a timely petition for writ of certiorari.
A motion to withdraw must be accompanied by counsel's certification that a copy of the motion
was furnished to the defendant and to the United States.
Where counsel is granted leave to withdraw pursuant to the procedures of Anders v. California,
386 U.S. 738 (1967), and Penson v. Ohio, 488 U.S. 75 (1988), counsel's duty of representation is
completed, and the clerk's letter transmitting the decision of the court will notify the defendant of
the procedures for filing pro se a timely petition for panel rehearing, a timely petition for
rehearing en banc, and a timely petion for writ of certiorari.
Appellate Case: 21-1335
Page: 1
Date Filed: 06/21/2022 Entry ID: 5169184
APP. p. 038
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.