Petition for Writ of Certiorari — Wicahpe George Milk, Petitioner v. United States

Supreme Court briefJul 27, 2023

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APPENDIX

'mttiteb htates' (!I,ottrt O€ mppeal*

jfor

(!Dtttutt

tT)e eiqgtg

No, 21-3722

States of America

United

Plaintiff' - Appellee

Milk

George

Wicahpe

Defendant - Appellant

Appeal

from

United

of South Dakota

for the District

May

3, 2023

and I(OBES,

Circuit

Filed:

I(ELLY,

Before

Circuit

KELLY,

Wicahpe

WOLLMAN,

convicted

felon,

was convicted

Milk

and

district

court decisions

review

of the record

Appellate

Judges,

Judge,

of a sribstance

or more

- Western

20, 2022

October

Submitted:

Couit

States District

containing

obstruction

by a jury

of justice,

indictment

and of all issues raised

Page: 1

to distribute

possession

methamphetamine,

that span from

Case: 21-3722

of conspiracy

of a firearm

several

After

careful

Milk

through

sentencing,

we affirin.

Date Filed: 05/03/2023

as a

challenges

appeal,

on appeal,

500 grams

Entry ID: 5272")32

002a

"We

reasonable

present

the facts

in a light

inferences

from

the evidence

States v, Ramon-Rodriguez,

Milk moved

offense.

2015,

Frank

Frai'ilc traveled

Milk advanced,

Frank,

from

South

distribution-level

Milk,

Dakota,

later

Dakota,

as tlie initial

rented rooms

or "plug,='

Milk

fronted

Milk

acquire

Creek

later

otliers.

Milk

In late-summer

Minc.

Wliile

there,

of methamphetamine

for

liis profits

back

to Milk,

associates

to California,

time

from

to South

of operations"

each

Ranch

Resort

in Kyle,

drug activity,

Milk

served

Frank

laxown

and several

as Milk's

of metliamphetamine

South

and Milk

soon became

and associates.

and JulissaPoorBear,

receiving

to sell methamphetamine

for Milk's

to his distrilyutors

to sell

Milk.

Dakota

Prairie

2015,

on an unrelated

the help of "trusted"

trips

them large quantities

distributors,

that they quickly

South Dakota,

relocated

from

liis methamplietamine

in Rapid

enlisted

In Januaiy

prison

to visit

to bring

all

verdicts,"

distributors,

to engage in drug transactions,

HaroldBrewer

sold througliout

agreed

drawing

methamphetamine.

quantities

The Lakota

"base

federal

to California

of metliamplietamine

others, including

frequently

two

California,

at this motel

as the dn'ig source,

Dalcota

at least two trips

from

to distributing

and Frank

made

lie transported

served

tlie jury's

as one of his first

Dalcota,

quantities

too, made

support

distribution-level

to South

Franl<

tliat

turned

(Franlc),

or "fronted,"

on his return

the drugs,

Milk

Franl< to sell in Soutli

to the verdicts,

after he was released

thereafter,

used his cousin,

favorable

492 F,3d 930, 934 (8th Cir. 2007),

to California

Sliortly

most

City,

Togetlier,

South

Millc

California

from

California,

Dakota,

where

and liis distributors

Francis,

the home,

Isaac

user-level

quaxitities

of methamplietaminea

sometimes

paid liim

for rent witli

noise and foot traffic

to South

owner

Milk

and he continued

reiited

a house

he lived

with

regularly

of the Turtle

Creek

from

Milk

Poor

called

Turtle

Bear,

Brewer,

and

engaged

in drug

deals inside

home,

occasionally

obtained

Bear,

and the two

Neiglibors

complained

of tlie

and after two or three months,

Francis

-2-

Appellate

Case: 21-3722

Page: 2

and Poor

metliamphetamine,

in and out of tlie home,

Dakota,

Date Filed: 05/03/2023

Entry ID: 5272132

003a

asked Milk and the others to move

Ridge

the two

wliere

Dakota,

Soutli

in Wan'blee,

Reservation

to tlie Pine

and Poor Bear relocated

Milk

out,

selling

continued

drugs.

On August

traffic

17, 2016,

Milk

was arrested by local law enforcement

during

Elder,

South

Dakota,

156.12

grams

On April

18,

Milk

with

stop in Box

a liandgun,

methamphetamine,

in violation

methamphetamine,

Milk's

case was later joined

and 846, and

of 18 U.S.C.

§§ 922(g)(1).

Milkpleadednotguilty.

contraband

jailhouse

and <'Follow

same jail,

began

statements

to law

in tlie

and stick

lead

to the code

obtained

to explain

attorney

Later,

in violation

of justice

for obstruction

law

enforcement

of 18 U.S,C,

attempting

was scl'ieduled

to testify

a witness-also

was a baclc-seat passenger

was borrowed from anotlier man.

IMilk

Milk

tliat Brewer5s

On April 16, 2019, the

againstMilk,

adding a charge

and several

that Milk

an ininate

other

at the jail-who

The

trial

of one of Milk's

distributors,

a "taint

team,'5 composed

of an investigating

in the criminal

by establishing

notes,

e)1503,

information

received

to intimidate

inmates were

responded

indictment

a second superseding

In other

of silence,"

call his own or Milk's

that Brewer

tliat story recanted,"

rip,'5 "Get

previous statements to law enforcement were "lie[sl."

government

City,

about Brewer's

notes from Milk

tell the'in about any dope you gonna get us jambed

government

Jail in Rapid

MilllsnotestoBrewersaidthingslike,"Tellthemnotliing,""[I]fyou

enforcement.

demanded

County

incarcerated

Brewer,

his trial,

pending

South Dakota,

and

Brewer

co-conspirators,

in the Pennington

incarcerated

remained

Milk

containing

(b)(l)(A),

BrewerandPoorBearsoonenteredguiltypleas.

PoorBear.

receiving

two of his alleged

with

or substance

§§ 841(a)(1),

felon, in violation

as a convicted

of a firearm

possession

of 21 U,S,C,

charging

indictment

or more of a mixture

500 grams

to distribute

conspiracy

in tlie vehicle.'

and drug paraphernalia

retc'irned a superseding

grand jury

2017, a federal

discovered

Officers

in tlie car, a red Pontiac

Grand Prix,

which

-3-

Appellate Case: 2')-3722

Page: 3

Date Filed: 05/03/2023

Entry ID: 5272132

004a

agent and attorriey

separate

search Milk's

jail

cell

screened

materials

tlie

documents

before

Before

denied

in whole

guilty

verdicts

The district

seized

Milk's

MilIc

denied

from

cell

documents

filed

pretrial

severaI

for

moved

tlie motion,

firearm

and obstruction

followed

by 5 years of supervised

potentially

privileged

which

to trial.

After

received

a sentence

corint and 120 months

of justice

the

team,

district

the jury

court2

returned

to diSl'niSS the case for lack of jurisdiction,

Milk

on tlie drug conspiracy

team initially

any

motions,

The taint

over to the prosecution

and the case proceeded

Milk

Milk,

and prosect'iting

tampering

tlie remaining

on all counts,

imprisonment

investigating

of witness

or in part,

court3

the team

for evidence

turning

trial,

from

counts,

with

of 360 months

of imprisonment

all sentences

on tlie

to run

concurrently,

pre-

and post-trial

release.

II.

On appeal,

rulings,

argues

challenges

the

address Milk's

'Milk

challenges

evidence

calculation

various

several

was

of his

arguments

of the district

insufficient

advisory

court's

suppoit

Guidelines

in turn and present

his

range

additional

convictions,

and

at sentencing.

facts as relevant

the argi'iments.

We begin

jurisdiction

with

adopting

Wollmann,

3The

District

assertion

over liis case. "Tlie

2The Honorable

Dakota,

Milk's

United

Jeffrey

tlie report

of South

issue of wliether

L, Viken,

Karen

corirt

federal

then Chief

and recoininendation

States Magistrate

Honorable

that tlie district

subject

Judge

United

States

subject

matter

jurisdiction

for tlie District

of tlie Honorable

Judge for the District

Schreier,

lacked

Judge

of South

Daneta

of South Dakota.

District

Judge

for

Dakota.

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Appellate

Case: 21-3722

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Date Filed: 05/03/2023

Entry ID: 5272132

the

005a

706

127 F.3d 705,

Hawk,

States v, Thunder

United

review,"

to de novo

exists is subject

(8tli Cir, 1997),

that

the

district

crimes

that

are

contends

Tribe,

convicted

18 U.S,C.

§ 1153,4 and

involved

American

precedent,

recognized,

we have

reservations,

even

person

or property

of another

(<'We have

held

that

extend

or restrict

the

application

Milk

of general

is not an element

Crimes

722 F,2d

further

contends

that tlie distict

court

Act

any

Native

over

manslaughter,

kidnapping,

against

abuse or neglect,

child

age of 16 years, felony

a felony

maiming,

is,

of the crime,'5-apply

under

against

person

the

152 F.3d

869, 877 (8th Cir.

'do

not

to Indian

statutes

383, 384 (8th Cir, 1983)),

States

United

109A,

"murder,

incest,

a felony

who has not attained

an individual

robbery,

arson, burglary,

the

has "exclusive

coinmits

wlio

chapter

under

jurisdiction

lacked

person

American

I 13, an assault

section

the

that

provides

Crimes

application-that

cri'ininal

States v. Blue,

the

and only

and its exceptions

federal

general

Act,

foreclosed

are

414 F,3d

Act]

was

§ 1152,

States v, Wadena,

United

States v. Drapeau,

Crimes

by an Indian

United

jurisdiction'5

assault under

laws

(quoting

Major

"The

federal

General

[the

2005)

And while

arguments

person.

Indian

see United

831, 841 (8th Cir. 1998);

reservations.'=5

Milk's

committed

to offenses

Indian

Major

Reservation

on the Pine Ridge

But

situs of tlie offense

[the]

!!those in whicli

people,s

Indiaii

(1)

18 U,S.C,

Act,

Crimes

the General

(2) under

lie

because

the

under

enumerated

not

acts in this case occurred

unlawful

alleged

jurisdiction

lacked

court

Sioux

of the Oglala

member

and an enrolled

American

is Native

who

Milk,

the

and a felony

under section 661 of tliis title within tlie Indian country," 18 U,S,C, (31153(a),

5The General

States as to the punislunent

the United

sole and exclusive

country,'5

person

but "shall

or property

the exclusive

tribes,"

Act provides,

Crimes

extend

of another

jurisdiction

18 U.S,C,

of offenses

of the United

jurisdiction

not

in relevant

to offenses

Indian,.,,

over

such

part, that "the

States , , , shall

is or may

extend

by one Indian

or to any case where,

offenses

laws of

in any place within

coininitted

coinmitted

general

by treaty

be secured

to the Indian

against

to the Indian

§ 1152,

Case: 21-3722

Page: 5

Date Filed: 05/03/2023

the

stipulations,

-5-

Appellate

tlie

Entry ID: 5272132

006a

Fort Laramie

this argument,

Treaty,6

challenges

'@rejected similar

previor'isly

with

to comply

jurisdictional

purported

Treaty."),

in the Fort Laramie

prerequisites

lyased

subject matter jurisdiction

to federal

States failed

the United

upon allegations

we liave

tliat

(recognizirig

2011)

Cir,

567, 568 (8tli

638 F.3d

States v. Jacobs,

See United

by precedent.

too, is foreclosed

we turn

Next,

evidence

seized

the traffic

during

cell,

court's

the district

evaluating

tlie

legal conclusions

"In

35 F.4th 1100,

States v. Nyali,

United

to suppress

of his motions

his jail

stop and from

for clear error,"

findings

<'Wewillaffirmunlessthedenialofthemotionisunsupported

1105(8thCir.2022).

evidence,

by substantial

of the denial

we review

to suppress,

denial of a motion

novo and factual

appeal

to Milk's

of tlie law, or it is

interpretation

is based on an erroneous

States v, Walker,

clear, based on the entire record, that a mistake was made.'5 United

840 F,3d 477, 483 (8th Cir, 20I6),

the August

Milk

contends

Fourth Amendment

protects

First,

amend. IV,

supported

traffic

"Under

by either probable

violation

Washington,

Amendment,

a traffic

cause or an articulable

probable

and reasonable

cause for a traffic

"Any

stop.'5 United

The

U.S. Const,

if it is

stop is reasonable

suspicion

that a

United

States v.

violation,

however

States v. Adler,

590 F,3d

, 840 F,3d at 483 (quoting

has occurred."

455 F.3d 824, 826 (8th Cir, 2006)).

minor, provides

stop was unlawful.

searclies and seizures,

against unreasoriable

the Fourth

traffic

17, 2016,

traffic

part, states, "If bad men among the Indians shall

upon the person or property of any one, , , , the

coinmit a wrong or depredation

agent,

Indians herein named solemnly agree that they will, upon proof made to their

to the United States, to be tried and

and notice by him, deliver up the wrongdoer

Treaty of Fort Laramie, art. I, April 29, 1868, 15

punished according to its laws."

Stat, 635,

6The Treaty,

in relevant

-6-

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Entry ID: 5272132

007a

581, 583 (8th Cir. 2009) (quotinz United States v. Wrizht, 512 F.3d 466, 471 (8th

Cir. 2008)),

Deputy

Keith

morning

liours

driving

erratically,

Carlson

ofAugust

conducted

17, while

Carlson

30 seconds,"

before

"jerking

back

down[,]

and

speeding

nonetheless

argues

unassailable

Cir. 2019)

patrol

court

veliicle

captured

"into

The

after

the

court

area"

But "[a]

United

randomly[,]

slowing

testimony.

credibility

deteri'nination

of a motion

to suppress

915 F.3d

crossing

the center line of the roadway,

We find

factual

findings

Carlson

challenges

tlie

warrantless

automobile exception to tlie Fourtli

dashca.in

552, 555 (8th

tlie Pontiac

corut's

Carlson's

video

Amendment's

of tlie

Pontiac.

warrant

"Under

requiremeiit,

made a roadside

stop of a vehicle

compartment

of that

if probable

cause

exists

is located

inside

the vehicle,"

and trunlc

or evidence

of criminal

As Deputy

coming

influence

findings,

"We

from

States v, Williams,

approached

substance,

held

Milk

appeared

cliallenges

that the odor

search of a vehicle

under

marijuana

Carlson5s

duties

can be highly

while

the

a police

to believe

he smelled

tl':ie odor of

or under

neither

tliese

of marijuana

see

probative

that

inelyriated

the automobile

on "saturation

his

may search the passenger

tlie Pontiac,

955 F,3d 734, 737 (8th Cir, 2020);

(('The odor of unburned

7Deputy

Carlson

repeatedly

cause for a warrantless

activity

the car, and the driver

a controlled

have

vehicle

from

and agree that Deputy

officer who has lawMly

marijuana

And

cause to stop tlie Pontiac,

840 F,3d at 483,

Milk

omitted),

had probable

contraband

for

shoulder

this

States v, Morris,

Deputy

sign

of the road5s

credited

on the merits

aredPontiac

car sit at a stop

and then "braking

a hearing

in the district

Milk

he observed

the gravel

was "fibbing.'5

no clear error

Next,

lie saw

district

on appeal,"

(quotations

that

the roadway,"

that Carlson

made by a district

virtually

drive

up."

stop, and he stated that in the early

on "saturationpatrol,,""

testified

"approximately

into

the traffic

provides

the

factual

probable

exception,'5

, 840 F,3d at 483

in establishing

patrol'5

involved

probable

patrolling

the

areato "[elnforce traffic laws" while "focusing on alcohol or drug-impaired drivers,"

-7-

Appellate

Case: 21-3722

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008a

carise for

a search,"),

s'i'ipported

suppression

Becarise

botli

cause,

the

probable

the stop and the search

district

court

did

'iiot

of the Pontiac

err

denying

were

Milk's

motion,8

Before

on Sixtli

client

trial,

Millc

Amendment

privileged

filed

a motion

grounds,

information

June 13, 2019,

to suppress

arguing

that the materials

and his work

942 F.3d

159,

174

(4th

product,

Cir.

and the work-product

doctrine

guarantee

of effective

of counsel"),

recornxnended

protected

that most

of tlie documents

by the work-product

indictinent,

not merely

suppression

Tl':ie district

court

appropriate,

and adopted

On appeal,

doctrine,

oveiruled

Milk

the

reasserts

But the remedy

tailored

suffered,,,

to the injury

interests,'5

dist'rict

United

States

court proliibited

contents

at trial,

any evidence

Ftuther,

from

that

suppression

tliat tlie proper

remedy

Amendment

U,S.

361,

364

infringe

from using the privileged

that

order

gleaned

from

them

at trial,

making

Accordingly,

no error

Milk's

and search of the vehicle,

offers

use of the

argument

And

alone

was

sources

"should

And

here,

to establish

independent

that

of tlie

to suggest

the government

suppressed

documents

or information

court's

concerning

no abuse of discretion

probable

his standing

in axiy event, the district

court

in tlie

cause determination,

to challenge

assumed

the stop

that Milk

-8-

Case: 21-3722

Page: 8

the

ortlieir

standing,

Appellate

nothing

we discern

in tlie district

remedy.

documents

from

Milk

of the

on competing

(1981),

was derived

cell.

they were

was dismissal

violation

to use at trial

violated

we need not address

the appropriate

the government

Milk=s

judge

that dismissal

court required

seized

found

because

the district

evidence

Amendment's

was

notunnecessarily

449

Isst.ied

recommendation.

for any Sixth

and should

attorney-

the magistrate

arguing

finding

judge's

tlie government

it sought

8Having

of the evidence,

v. Morrison,

the Sixth

a hearing,

objected,

cell

that the attorney-client

seized be suppressed

his argument

of the indictment.

seized included

(noting

After

objection,

liis jail

See In re Search Warrant

2019)

Milk

the magistrate

seized from

c'jointly support

privilege

assistance

evidence

Date Filed: 05/03/2023

Entry ID: 5272132

had

009a

remedy crafted by tlie district

court.

(8tli Cir, 2020)

the district

dismissal"

for

(reviewing

abuse

See United States v, Woods, 978 F,3d 554, 564

court's

<'fashioning

of a remedy

short

of discretion).

Milk

argues that the delay between his arrest on August

17, 2016, and his

initial appearance before a federal magist'rate judge on September 26, 2016, violated

Federal Rule of Criminal

dismissed as a result,

Procedure

Becat'ise Milk

review it for plain error.

5(a)(1)(A)

and tliat the indictment

must be

did xiot raise this clai'in to the district court, we

See United

States v, Pirani, 406 F.3d 543, 549 (8th Cir.

2005) (en banc); Fed, R, Crim. P. 52(b),

Under Rule 5(a), "[a]

take the defendant without

person making an arrest within

unnecessary

the United States must

delay before a magistrate

Fed, R.

Crim, P, 5(a)(1)(A),

But the rule "applies

federal law,"

States v. Coolce, 853 F.3d 464, 470 (8th Cir, 2017) (quoting

United

United States v. Elliott,

only to persons

judge,"

435 F.2d 1013, 1015 (8th Cir. 1970)),

federal arrest, the rule may apply only "when

arrest and detention

arrested and held under

by [a] state official

for the purpose of assisting them."

were

In tlie absence of a

there is evidence indicating

that the

at the request of federal authorities

Id, (quoting

United

States v, Jarrett, 423 F,2d

966, 971 (8th Cir, 1970)).

Wlien Milk

was arrested on August 17, 2016, lie was taken into state custody,

Milk lias offered no evidence to suggest lie was held in state custody at the direction

of or in concert with federal officers,

As a result, Rule 5(a) is not applicable.

Milk

was not arrested on federal charges until September 26, 2016, and lie made his initial

appearance tlie same day, There was no Rule 5(a) violation,

plain or otherwise,

-9-

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Case:

21-3722

Page:

Date Filed:

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Entry

ID: 5272132

010a

Milk

also

particulars

a bill

appeals

860 (8th Cir,

sliow

the denial,"

United

To establish

reversible

8 F,3d 1264,

lacked

a defense,

P, 7(f).

But a bill of particulars

589 F,2d

cliarge

the offense

"is

1344,

Tlie indictment

involved,

This was sufficient

conspiracy

and

proffer

the

type

the government

statements

the

provided

and witness

tlie

of surprise

at trial,"

576 F.3d

enough

at 883 ("If

of particulars.55);

was convicted."

Fed. R, Crim.

purposes."

indictment

United

is sufficient

construction,

United

States v. Bowie,

, 8 F.3d at 1265).

of the offense,

Cir.

2011)

substance

of the alleged

(holding

provides

of the time

involved"

interviews,

lias

drug conspiracy,

States v.

for

facts constitt'iting

of the

prior

failed

of tlie

an indictment

omitted)),

discovery

Milk

tliat

frame

Milk

See United

"(specific

(citation

voluminous

apprised

alleged

drug

Further,

Milk

to trial,

to show

including

any

actual

-10-

Appellate

Case: 21-3722

Page: 10

inforn"iation

be said, by any reasonable

defendant

drugs

the danger

provide

the time frame

(8th

to mount

to enable

of the basis for the charge,

I218

liim

precision

Cir. 1979).

the elements

a controlled

it apprises

not

(quoting

Milk

1210,

to distribute

concedes

to inform

F.3d

(8th

and specified

(quoting

sufficient

for a bill

the defendant

here set forth

from

serves to infor+n

not to be used for discovery

1352

618 F,3d 802, 817 (8th Cir. 2010)

the offenst'

does

that it cannot

for whicli

prejudice

to allow

see Livingstone,

then he or slie may move

it is so defective

conspiracy

up);

an indictment

prepare

of his motion,

and suffered

bill of particulars

or minimize

that

regarding

462 F,3d 847,

on a denial

facts

and to avoid

believes

, 650

sufficient

against him witli

(cleaned

ruling

1265 (8th Cir. 1993)).

of the charge

at 860

"unless

at trial

a bill

576 F,3d 881, 883 (8th Cir. 2009)

of conspiracy,

, 462 F.3d

type of drugs

surprised

States v. Livingstone,

the indictment

error based

court's

for

States v, Shepard,

for trial,

States v. Hill,

motion

United

of the nature

defendant

his

for abuse of discretion,'5

defei':ise agaii':ist tlie cliarge

to prepare

a district

that lie was actually

argues

defendant

charge.

denial

review

States v. Fleming,

Milk

court=s

"We

2006).

Millc "must

him

district

on his conspiracy

ofparticulars

United

the

Date Filed: 05/03/2023

Entry ID: 5272132

Olla

surprise at t'rial or prejudice.

Cir, 1986)

(finding

See United

no prejudice

or surprise

for a bill of particulars,

motion

conspirators

in denying

where,

the government

and tlie statements

abuse its discretion

States v, Maull,

of relevant

Milk's

806 F.2d 1340, 1346 (8th

in response to the defendant's

provided

individuals).

motion

the names of unindicted

The dist'rict

court did not

for a bill of particulars.

Milk

argues thatthe

the conspiracy,

Criminal

firearm,

Procedure

appears to prejudice

severance

showing

under

district

court abused its discretion

and obstruction

14.

Rule 14 allows

a defendant,"

counts

for trial

cliance for an acquittal'

915 (8th Cir. 2018)

Fed. R. Crim,

in a severed trial."

United

"We

and will

review

denial

only

upon

would have had 'an appreciable

States v. Reichel,

911 F,3d 910,

States v, Geddes, 844 F,3d 983, 988 (8th Cir,

"Noprejudiceresultsfromtherefusaltoseverwhenevidenceofonecharge

would

be admissible

in a separate trial on the other.'5 United

(quoting

Rule

of offenses

reverse

2017)).

590, 604 (8th Cir. 2021)

sever

Federal

joinder

P. 14(a).

that is, if tlie defendant

(quoting

under

for severance if "tlie

Rule 14 for an abuse of discretion

of severe prejudice,

wlien itrefusedto

United

States v, Mink,

States v. McCaither,

9 F,4th

596 F.3d 438, 442

(8tli Cir, 2010)),

Evidence

admissible

tliat

Milk

showed

that

simultaneously,

conspiracy.

Milk

making

See United

a separate trial

possessed

distribution-quantity

his possession

and admissible

testimony

on those underlying

"felon-in-possession

cliarge

would

was alleged to

and

evidence

firearm

(8th Cir, 1989),

and fireari'n

to show his intent

been

to the charged

conspiracy

282 F,3d 548, 552 (8th Cir, 2002) (finding

the defendant's

relevant

States v, Jones, 880 F,2d 55, 61-62

of Milk's

have

The government's

drugs

of the firearm

evidence

would

charge because Milk

the drug conspiracy,

for obstruction,

a witness's

a firearm

during

have been probative

to influence

y,,

possessed

in a separate trial on the conspiracy

liave possessed the firearm

would

unlawfully

or motive

drug

And in

charges

for seelcing

charges,

See United

States

no showing

of prejudice

where

have

been

admissible

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Entry ID: 5272132

012a

separatetrial of the witness tampering charge,because[hisl witness tampering was

an attempt

Milk

to avoid

prosecution

has not shown

on any count

Milk

decision

that he would

had the trials

nonetheless

to testify

of the firearms

have had an appreciable

been severed,

contends

on this basis must make

testimony

lie would

counts."

2005)

sliowing,

because

he g'had to make

the

But "[a]

defendant

arguing

for

regarding

the

of the counts,'5

a Gpersuasive and detailed

McCarther,

(holding

See United

wishes

that "lie

was prejudiced

becarise he did

charge

charges"

was "not

enough

Severance55)i

statute under

the First

Milk's

motions

to sever,

tliat

18 U.S,C,

§ 1503,

he was convicted,

Amendment

Ai'nendment's

of a federal

but did want

in denying

which

and

due process

statute

criminalizes

de novo,"

"We

United

federal

speech

in violation

a challerige

States v, Betcher,

court

(8th Cir.

to the sexual

did not abuse

obstruction-of-justice

protected

vague

review

to testify

The district

tlie

is unconstitutionally

clause,

fails to malce tlie

1037

to the obstruction

argues

bare assertion

States v.

398 F,3d 1032,

to testify

Milk

United

Dog,

not want

its discretion

showing

severed and tlie reason he cannot

Milk's

contention

to require

at 915.

596 F,3d at 443 (quoting

States v. LittIe

that a defendant's

for an acquittal

he was prejudiced

, 849 F.2d 332, 338 (8tli Cir. 1988)).

requisite

chance

, 911 F.3d

give on tlie one counthe

on the otlier

these circumstances,

See

as to all or none

severance

testify

charge55). Under

in violation

of the

Fifth

to the constitutionality

534 F.3d

820, 823 (8th Cir.

2008),

18 U.S,C.

§ 1503(a)

or by any threatening

provides

letter

that whoever

or corninunication,

endeavors

to influence,

obstruct,

or impede,

be subject

to criminal

penalties.

Milk

abridged

his First

Amendment

right

conduct

cliarged,

We disagree.

<'corruptly

influences,

or by threats

obstructs,

the due ad'ininistration

argi'ies

that

to free speech

The indictment

his prosecution

and association

charged

Milk

with

or force,

or impedes,

of justice,"

shall

under

F§1503

as applied

to the

"endeavor[ing]

-12-

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013a

to corruptly influence, obstruct and impede tlie due administration of justice in

United States v, Millc,,,

and United States v, Poor Bear..,

to be delivered

letters

to a witness

proceedings,"

Milk

has

Amendment

shields

failed

witnesses55); United

that the defendant's

"merely

another

type of ordinary

been traditionally

adequate

notice

a"A

showing

the confines

threaten

of secret grand jury testimony

communication

in a conspiracy

administration

conduct

was

that has

protection'5),

of justice"

in § 1503 is

or defendants

of the nature

statute is unconstitutional

of the proscribed

the First

871 F,3d 590, 605

"conspiredto

of any First Amendment

enforcement,='United Statesv7Tebeau,

tliat

at such

775 F.2d 670, 678 (6th Cir, 1985)

because it fails to apprise the public

conduct,

his testimony

showedtliathe

disclosure

also argues that the phrase "due

of the prohibited

and causing

conduct did not fall within

criminal

found rindeserving

void for vagueness

colorable

States v, kter,

unlawf-ul

and alter

States v. Parker,

the facts attrial

(holding

provide

See United

that the defendant's

of tlie FirstAmendmentwhere

Milk

to malce any

sucli speech.

(8tli Cir. 2017) (finding

government

to discourage

by writing

for vagueness

or lends

itself

if it fails to

to arbitrary

713 F.3d 955, 961 (8th Cir, 2013) (cleaned

up)(quotingUnitedStatesv.Birbrazher,603F,3d478,485(8thCir,2010)).

<!When

reviewing

to the

for vagueness,

defendant's

conduct,

unconstitutional."

we first

detennine

and only if it is will

United

For an as-applied

if a statute is vague as applied

we consider

whether

a statute is facially

States v. I(T Burgee, 988 F,3d 1054, 1060 (8th Cir. 2021),

challenge,

"we

100k to whether

the statute gave adequate

warning,

under a specific

set of facts, that [Milk's]

behavior

Ui'iited

States v. Palmer,

917 F,3d 1035, 1038-39

(8th Cir. 2019)

States v, Wasliam,

312 F,3d 926, 931 (8th Cir, 2002)).

the phrase "due

of justice"

judge

says it is."

intended

administration

But tlie evidence

to discourage

a witness

Milk's

from testifying,

at proceedings

and Poor Bear's

engaged

allegations,

included

in the indictment,

gave Milk

the conduct

as well

as the proceedings

the conduct

federal

(quoting

is tliat

that a prosecutor

in conduct

or to convince

testimony,

offense."

only argument

can mean ('anything

showed that Milk

in Milk's

was a criminal

that was

him to change his

criminal

adeqriate waming

was intended

cases. These

of the nature of

to obstruct,

The

-13-

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Entry ID: 5272132

014a

statute

also contains

"corruptly,"

U,S.

513,

a mens

rea requirement

that limits

its scope to those

who

act

18 U,S,C, e31503(a); seePosters (N' Things, Ltd, 'v. United States, 511

526

(1994)

"assist[]

in avoiding

has failed

to show

(noting

that

scienter

any vagueness

that § 1503(a)

reqriirements

proble'in").

in criminal

Under

statutes

may

the facts of this case, Milk

was unconstitutionally

vague

as applied

to him.

now

convictions,

address

whetlier

Our review

to tlie governnient,

reasonable

guilty

"We

beyond

conflicts

that support

1139, 1144 (8th Cir, 2022)

Cir, 2013)),

will

evidence

is de novo, "viewing

resolving

inferences

tlie

a reasonable

United

doubt,"

favor,

sustain

Milk's

most favorable

and accepting

States v. Maurstad,

States v. Casteel,

if no reasonable

in the light

in the governinent's

United

only

sufficient

evidence

the verdict."

(quoting

reverse

was

jury

all

35 F.4th

717 F.3d 635, 644 (8th

could

have found

[Milk]

Id,

To convict

U,S,C.

Milk

846,

tlie

of conspiracy

government

to distribute

must

(1)

substance

conspiracy

under

distiibute

methamplietamine

existed>';

"la'iew

aborit

the conspiracy";

and (3) Milk

"lcnowingly

a part of the conspiracy,"

United

States v, Lewis,

976 F.3d 787,

may

794

became

(8tli

Cir.

2020).

circumstantial

(quoting

Milk

conspiracy

contends

suffice

that tliere

to distribute

consists

to establish

2014),

461 F.3d 939, 945 (8tli

was insufficient

[a] defendant's

evidence

in part because

such as a controlled

of testimony

Tlie

be proved

direct

States v, Cain, 487 F.3d 1108, 1111 (8th Cir, 2007)

methamplietamine

evidence,"

primarily

587 (8th Cir,

United

existence

States v, Sancliez-Garcia,

present "objective

tliat

4<The conspiracy's

evidence,"

United

(2) Milk

prove

a controlled

from

guilt."

Cir. 2006)).

of his participation

tlie government

in a

failed

buy, at trial,

But "evidence

at trial

other

members

of the conspiracy

may

United

States v, Conway,

demonstrated

that Milk

754 F,3d

was the link

580,

between

-14-

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Entry ID: 5272132

015a

methamplietamine

sourced

from

Dakota

and that lie recruited

joining

the conspiracy.

drugs

were

over

tl':iere is ample

Milk

questions

tlie jury's

otliers

and a network

to distribute

of witness

credibility

United

Viewing

the evidence

allow

a jury

to find

Milk

and others

time,

wlio

including

testified,

not reweigh

813 F,3d 1139,

most favorable

a reasonable

fronting

but we defer to

the evidence

1147

to the verdict,

or the

(8th Cir, 2016).

it was sufficient

doubt that there was a conspiracy

methamphetamine

laxew about the conspiracy,

SeeUnitedStatesv,Moya,690F,3d944,

in the liglit

to distribute

intentionally

a conspiracy,5)),

and will

States v, Taylor,

beyond

in South

exists that large amounts

of most witnesses

credibilityoftliegovernment'switnesses,

950 (8th Cir, 2012:);

period

to support

tlie credibility

assessment

evidence

extended

evidence

of distributors

drugs for him, thereby

See id. at 588 ("When

distributed

transactions,

California

in the amounts

and tliat he intentionally

joined

between

charged,

tliat Milk

it.

To support

a conviction

government

must

punishable

possessed

a firearm;

(4) Milk

knew

possessing

Milk

establish

a term

of imprisonment

(3) the firearm

belonged

a firearm,

United

challenges

only

to prove

he la'iowingly

arrested

on August

show

liad

dominion

17,

constructive

over

or dominion

(2) Milk

lmowingly

element,

one year;

element

may

found

States v, Green,

over the firearm

(cleanedup)

coininerce;

persons

barred

and

from

910, 913 (8th Cir. 2022),

that the government

in the Pontiac

satisfied

835 F,3d

the government

wliere

interstate

arguing

the firearm

premises

1011, 1014 (8th Cir. 2020)

exceeding

42 F.4th

possession,

the

of a crime

States v, McKee,

the second

felon,

convicted