Petition for Writ of Certiorari — Kieffer Michael Simmons, Petitioner v. United States

Supreme Court briefNov 14, 2023

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IN THE

SUPREME COURT OF THE UNITED STATES

KIEFFER MICHAEL SIMMONS,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE 8TH CIRCUIT

APPENDIX

Joseph G. Bertogli

300 Walnut St., Suite 270

Des Moines, IA 50309

PHONE: (515) 244-7820

FAX: (515) 244-9125

ATTORNEY FOR PETITIONER

Gnited States Court of Appeals

For the Ctahth Circuit

No. 22-1686

United States of America

Plaintiff - Appellee

Kieffer Michael Simmons

Defendant - Appellant

No. 22-2179

United States of America

Plaintiff - Appellee

Terry Eugene Hambrick

Defendant - Appellant

Appeal from United States District Court

for the Southern District of Iowa - Central

Submitted: January 11, 2023

Filed: June 14, 2023

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Before GRASZ, MELLOY, and KOBES, Circuit Judges.

KOBES, Circuit Judge.

A jury convicted co-defendants Kieffer Simmons and Terry Hambrick of

conspiracy to distribute and distribution of methamphetamine, 21 U.S.C.

§§ 841 (a)(1), (b)(1)(A), 846. Both challenge several district court! rulings, and

Hambrick appeals his conviction. We affirm.

In January 2020, the Government began using a confidential informant (CI)

for controlled buys of guns and drugs in Des Moines, Iowa. The controlled buys

resulted in multiple arrests. Most of the co-defendants pleaded guilty but Simmons

and Hambrick went to trial.

We first turn to Simmons. Co-defendant Leon Edwards introduced the CI to

Simmons. In February 2020, Edwards and the CI met with Simmons, and Simmons

sold the CI methamphetamine. Simmons sought to call Edwards at trial, who would

testify that Simmons did not sell methamphetamine to the CI. Edwards also wrote

a letter stating the same. The Government moved to exclude Edwards’s testimony

and letter. At the final pretrial conference, Edwards’s attorney indicated that

Edwards did not want to testify, and if called, he would invoke his Fifth Amendment

right against self-incrimination. To secure Edwards’s testimony, Simmons asked

the court to order the Government to grant Edwards immunity or, alternatively,

immunize Edwards itself. The court declined to do either and refused to admit

Edwards’s letter in lieu of his testimony because it was inadmissible hearsay.

'The Honorable Rebecca L. Goodgame Ebinger, United States District Judge

for the Southern District of Iowa.

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Additionally, before trial, Simmons proposed a jury instruction on multiple

conspiracies. The district court found that the evidence did not support multiple

conspiracies, so it did not give the instruction.

Simmons argues that (1) Edwards’s testimony and written statement should

have been admitted and (2) the district court should have instructed the jury on

multiple conspiracies instead of a single conspiracy. We review the district court’s

rulings for an abuse of discretion. See United States v. Blaylock, 421 F.3d 758, 770

(8th Cir. 2005) (declining to compel witness testimony); United States v. Cree, 778

F.2d 474, 477 (8th Cir. 1985) (refusing to admit hearsay evidence); United States v.

Lvers, 967 F.3d 709, 720 (8th Cir. 2020) (rejecting a proposed jury instruction).

Simmons argues that, in exchange for Edwards’s testimony, the court should

have ordered the Government to give Edwards immunity or immunized Edwards

itself. But district courts “lack[] authority to compel the Government to request

immunity for [a defense witness].” United States v. Bowling, 239 F.3d 973, 976 (8th

Cir. 2001) (cleaned up). “Additionally, the district court did not have the authority

to grant [Edwards] immunity because this court has consistently refused to recognize

the concept of judicial immunity.” Jd. (cleaned up). Simmons’s other arguments

regarding Edwards’s testimony are equally unavailing.” All considered, the district

court did not abuse its discretion.

*Simmons argues that his Sixth Amendment rights were violated when the

court did not compel Edwards to testify. But Simmons’s “Sixth Amendment right

to compulsory process does not include the right to compel [a witness] . . . to waive

his or her Fifth Amendment privilege against self-incrimination.” United States v.

Ralston, 973 F.3d 896, 912 (8th Cir. 2020) (citation omitted). Simmons also argues

that the district court should not have relied on Edwards’s counsel’s statement at the

pretrial conference, and instead should have required Edwards to personally assert

his Fifth Amendment right at trial. But in most cases, a counsel’s statement that “the

witness would exercise his Fifth Amendment rights if called to testify is sufficient

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Simmons also argues that, in lieu of Edwards’s testimony, the court should

have admitted Edwards’s letter under the residual hearsay exception. See Fed. R.

Evid. 807(a). The residual exception is to “be used very rarely, and only in

exceptional circumstances.” United States v. Peneaux, 432 F.3d 882, 893 (8th Cir.

2005) (citation omitted). To fall within the exception, the statement must be

“supported by sufficient guarantees of trustworthiness.” Fed. R. Evid. 807(a)(1).

The district court concluded that the letter was not trustworthy. Although the court

did not explain how it reached its conclusion, the court’s “discretion in determining

the admissibility of evidence is particularly broad in a conspiracy trial.” United

States v. King, 898 F.3d 797, 805 (8th Cir. 2018) (cleaned up). And it’s not hard to

imagine why the letter was not sufficiently trustworthy—the letter was not written

under oath and contradicted the CI’s sworn testimony. Given the district court’s

considerable discretion, and our deference to the district judge “who saw and heard

the evidence,” United States v. Burch, 809 F.3d 1041, 1045 (8th Cir. 2016) (citation

omitted), the court did not abuse its discretion by excluding the letter.

Next, Simmons argues that the court should have instructed the jury on

multiple conspiracies instead of a single conspiracy. He proposed that the jury must

“find that he was a member of the conspiracy charged in the indictment [and] not a

member of some other separate conspiracy” to find him guilty. Simmons Br. 31.

He argues that he was part of a separate conspiracy because he did not know any of

the co-defendants except Edwards, all co-defendants had separate contact with

Edwards and the CI, and the controlled buys occurred in different places.

District courts look to many factors when determining whether a multiple

conspiracy instruction is warranted, like “the nature of the activities involved, the

location where the alleged events of the conspiracy took place, the identity of the

for the district court to refuse to compel that witness to appear.” United States v.

Warfield, 97 F.3d 1014, 1019-20 (8th Cir. 1996).

Appellate Case: 22-1686 Paae: 4 Date Filed: 06/14/2023 Entrv ID: 5286606

conspirators involved, and the time frame in which the acts occurred.” United States

v. Radtke, 415 F.3d 826, 838-39 (8th Cir. 2005) (citation omitted). “A single

conspiracy may be found when the defendants share a common overall goal and the

same method is used to achieve that goal, even if the actors are not always the same.”

United States v. Gilbert, 721 F.3d 1000, 1005 (8th Cir. 2013) (citation omitted).

Edwards introduced the CI to several people, including Simmons and later

Hambrick (through a middleman). The drug deals involving the co-defendants were

similar in that they started with Edwards and occurred in Des Moines during the

same time frame. The fact that Simmons did not know his co-defendants did not

warrant a multiple conspiracies instruction. See United States v. Campbell, 986 F.3d

782, 797 (8th Cir. 2021) (holding that a multiple conspiracies instruction was not

warranted where there was no evidence of a separate conspiracy), cert. denied, 142

S. Ct. 751 (2022). The district court did not abuse its discretion in refusing to instruct

the jury on multiple conspiracies.

We now turn to Hambrick’s case. Edwards introduced the CI to co-defendant

Leroy Williams, a middleman. In April 2020, the CI and Williams were sitting in

Williams’s car. Williams then left the car and got into a white SUV. When Williams

returned, he sold the CI a plastic bag of methamphetamine. After the deal, agents

confirmed that Hambrick was the driver of the SUV. Fingerprints belonging to

Hambrick, Williams, and the CI were found on the bag.

At trial, two witnesses, K.T. and D.S., testified that Hambrick was a drug

dealer. K.T. testified that Hambrick sold him methamphetamine near where the

April 2020 buy took place in the same white SUV. D.S. testified that Hambrick sold

him PCP in Hambrick’s truck. Hambrick was convicted. He moved for a new trial,

arguing that the district court erred in allowing K.T.’s and D.S.’s testimony. The

district court denied the motion.

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Hambrick argues that there was insufficient evidence to convict him. We

review the sufficiency of the evidence de novo in the light most favorable to the

verdict. United States v. Chahia, 544 F.3d 890, 893 (8th Cir. 2008). Hambrick also

challenges the admissibility of K.T.’s and D.S.’s testimony. Because Hambrick did

not object to their testimony at trial, we review for plain error. See United States v.

Maxwell, 643 F.3d 1096, 1099-1100 (8th Cir. 2011).

We first consider Hambrick’s challenge to the sufficiency of the evidence.

“The standard for reviewing a claim of insufficient evidence is strict, and a jury’s

guilty verdict should not be overturned lightly.” United States v. Tate, 633 F.3d 624,

628 (8th Cir. 2011) (citation omitted). Hambrick argues that the CI did not identify,

know, or ever meet with Hambrick, and therefore Hambrick could not have been

part of the conspiracy. But the CI’s knowledge of Hambrick or Hambrick’s role is

not necessary for a conspiracy conviction. See United States v. Johnson, 719 F.3d

660, 666 (8th Cir. 2013) (noting that “a conspirator need not know all of the

conspirators or be aware of all the details of the conspiracy, so long as the evidence

is sufficient to show knowing contribution to the furtherance of the conspiracy”

(cleaned up)).

The evidence established that Williams bought methamphetamine from

Hambrick and sold it to the CI. The CI testified to arranging the buy and Williams’s

phone records showed calls with Hambrick on the day of the buy. After Williams

bought methamphetamine from someone in the white SUV, officers identified

Hambrick as the driver. The plastic bag that Williams later sold the CI had

fingerprints from all three men. Additionally, the jury heard testimony from K.T.

and D.S. that Hambrick sold drugs in the same car and in the same location as the

controlled buy. This evidence was sufficient to sustain his conspiracy conviction.

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Hambrick argues that it was plain error to admit K.T.’s and D.S.’s testimony.

To survive plain error review, Hambrick must show (1) an error, (2) the error was

plain, and (3) that it affected a substantial right. United States v. Jawher, 950 F.3d

576, 579 (8th Cir. 2020).

Hambrick argues that the testimony was impermissible prior bad act evidence.

See Fed. R. Evid. 404(b)(1). Alternatively, he argues that it was unfairly prejudicial.

See Fed. R. Evid. 403. The Government argues that the testimony was properly

admitted as intrinsic evidence. See United States v. Young, 753 F.3d 757, 770 (8th

Cir. 2014).

We do not need to resolve the purpose for which K.T.’s and D.S.’s testimony

was offered because Hambrick’s challenge does not survive the third prong of plain

error review. An error affects a substantial right if there is “a reasonable probability

that, but for the error, the outcome of the proceeding would have been different.”

Molina-Martinez v. United States, 578 U.S. 189, 194 (2016) (citation omitted). The

testimony of the agent and the CI, Williams’s phone records, the fingerprints on the

bag of methamphetamine, and the supporting exhibits all support the jury verdict

without the testimony of K.T. and D:S.

IV.

For the reasons stated above, we affirm the district court’s rulings and

Hambrick’s conviction.

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UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 22-1686

United States of America

Appellee

Kieffer Michael Simmons

Appellant

Appeal from U.S. District Court for the Southern District of lowa - Central

(4:20-cr-00189-RGE-5)

ORDER

The petition for rehearing en banc is denied. The petition for rehearing by the panel is

also denied.

July 21, 2023

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

/s/ Michael E. Gans

Apvellate Case: 22-1686 Paae: 1 Date Filed: 07/21/2023 Entrv 1D: 5297991

Mr. Hambrick received or had those offers communicated to him

and that he rejected those offers.

THE COURT: And at this point, is it Mr. Hambrick's

desire to proceed to trial in this matter?

MR. DYER: That's my understanding, Judge.

THE COURT: Thank you.

Mr. Bertogli, does the Government's recitation of the

record in regards to your plea negotiations comport with your

recollection?

MR. BERTOGLI: It does, Your Honor. And both under

the representation provided by Mr. Payton previously and

myself, Mr. Simmons has rejected the Government's plea offer

and wishes to proceed to trial.

THE COURT: Thank you.

So, with that record, we are going to turn to the

issue of Mr. Edwards’ testimony.

Mr. Bertogli, you have set forth in your written

materials that you believe that the Court should allow

Mr. Edwards to testify and that I should, if the Government

attempts to -~ or declines to give immunity, that the Court

should offer judicial immunity to Mr. Edwards to compel his

testimony.

Is that my correct understanding of your position?

MR. BERTOGLI: It is, Your Honor.

THE COURT: Thank you.

Before we proceed with argument as to what the Court

should do, I would like to hear from Mr. Sarcone. There have

been various representations made to the Court as to what

Mr. Edwards' intentions are at this point.

Mr. Sarcone, are you aware of Mr. Edwards' intentions

as to trial in this matter? JI understand he's been served with

a subpoena; is that accurate?

MR. SARCONE: That is correct, Your Honor.

THE COURT: And what is your understanding of

Mr. Edwards' intent?

MR. SARCONE: My understanding is at this point, given

the potential for the Government to bring an additional charge

and/or to seek enhancements to his sentence at sentencing,

Mr. Edwards is going to assert his Fifth Amendment right to not

testify.

THE COURT: So if called upon to come to court, he

would assert his Fifth Amendment right not to testify and would

decline to answer questions put to him by counsel?

MR. SARCONE: That is correct, Your Honor.

THE COURT: Thank you.

Would the Government like to be heard as to, one, any

actions you believe the Court should take further in making

this record and, two, responsive argument as to the propriety

of judicial intervention in terms of compelled testimony and

judicial grant of immunity?

MS. SHOTWELL: Thank you, Your Honor, just briefly.

First, the Government certainly wants to dispel any

notion that it has actively discouraged Mr. Edwards from

testifying in this matter. What we have done is communicated

to Mr. Sarcone the potential consequences should Mr. Edwards

testify in a manner that the Government believes to be false

and that the Court were to find to be false. That does include

sentencing considerations and new charges like perjury.

The Court's grant of immunity for his testimony is an

extraordinary mechanism that is not designed for a case like

this. The Government is not trying to manipulate the outcome

or manipulate the presentation of evidence by selectively

offering immunity only to people with favorable testimony.

What the Government has done is declined to offer

immunity to support testimony that the Government believes will

be false and that the Government believes the evidence will

conclusively show is false.

For the Court to then step in and provide immunity

under those circumstances is not warranted, nor is it based in

any of the case law that Mr. Bertogli cited.

Certainly, as we have previously said and stated many

times, if Mr. Edwards wishes to testify, he certainly can do

so. Mr. Sarcone has represented to us and has represented

again here today that he intends to assert his Fifth Amendment

right, and really, from the Government's perspective, the

inquiry should end at that point.

THE COURT: Thank you.

Mr. Bertogli, would you like to be heard?

MR. BERTOGLI: Well, Your Honor, I think I -- briefly

to summarize my position stated in my resistance to the

Government's motion in limine, at least sections 2 and 3 of

that pleading.

The first, I guess, requirement of the case law that

T'm aware of that talks about and recognizes and sets forth the

standards regarding judicial immunity says that the Government

has to be requested to grant immunity. To the extent -- to

meet that requirement, in my resistance filing, I have

requested that the Government provide immunity to Mr. Edwards

so as allow him to testify and to comply with Mr. Simmons's

right of compulsory process under the Constitution. And I

assume that the Government is declining that given their

position stated this morning.

The next step would be that the Court order the

Government to provide immunity, and if the Court declines to do

that, that the Court fashion a remedy so as to provide for a

fair trial in this case and fundamental justice as in the

language of the cases that I've cited, including Virgin Islands

v. Smith and the Lowell, Nolan, and Garner case references, as

it relates to what the standards are for the granting of

judicial immunity.

The Eighth Circuit, while I will obviously, as stated

in my pleading, recognize that the Eighth Circuit has not gone

so far as to recognize the concept of judicial immunity under

Capozzi, nonetheless discussed when it would be appropriate and

when it wouldn't be.

In that case, obviously, they didn't grant -- or find

any error by the district court in failing to grant the

judicial immunity there because, uniquely, the facts in that

case were that the witnesses who were requested by the

defendant in that case to be given judicial immunity had

already testified under oath in a civil proceeding such that

their deposition testimony was -- the district court invited

defense counsel in that case to use their prior sworn

statements, the deposition testimony, in any way or fashion

that the defendant in that case thought it would be beneficial

to him in his defense to the criminal case.

We don't have that here. We don't have any sworn

deposition testimony. We don't have any sworn testimony under

oath by Mr. Edwards that could be substituted for his live

testimony.

Additionally, at this point in time, it's the Friday

before the Monday beginning trial. He's been provided with a

writ ad testificandum for Tuesday after the Government would --

or whatever period of time the Government takes to provide --

to state their case. After they rested, I would propose to

call Mr. Edwards as a defense witness, and it would be then and

only then that he would be able to make a decision as to

whether or not he wanted to assert his rights of Fifth

Amendment.

THE COURT: Is it your position that counsel's

statement is insufficient for purposes of the record, that he

has to be called -- you think the case law supports the fact

that he personally has to be called to the stand and has to

assert in order for the record to demonstrate that he intends

to assert?

MR. BERTOGLI: Well, I think that the record needs to

be made, not in front of the jury, but at least during the

trial, that an out-of-presence hearing of the jury would need

to be conducted to determine whether or not he would indeed be

asserting his Fifth Amendment right against self-incrimination

at that time. I don't believe that just a statement of counsel

that is 72 hours or more in advance of when he would be

required to make that decision is sufficient to answer the

question is he going to take the Fifth or not, you know.

So I think that -- yes. I think the record needs to

be made closer to the time that he actually is called to

testify, but out of -- I would say it would be out of the

presence of the jury because it's my understanding that you

can't call a witness just to have them take the Fifth in front

of the jury.

So I understand that's the case, but it would

certainly be more appropriate to have him actually, out of his

own mouth, take the Fifth Amendment or not as opposed to rely

upon statements of counsel.

Tt's a very personal right. Whether or not

Mr. Sarcone may or may not have advised him is one thing,

whether he takes that advice, if indeed that is what it is -- TI

don't want to pry into attorney-client privileges here. But

it's a personal decision that he has to make based upon the

actual timing of the event as opposed to some prior stated

intention of counsel.

That's my position as it relates to the record that

would be necessary with Mr. Edwards. It has to be made -- I

think the record has to include him because it's his right he

would be asserting or not.

THE COURT: Thank you.

Specifically as to the sufficiency of Mr. Sarcone's

representations, Ms. Shotwell.

MS. SHOTWELL: Your Honor, the Government believes

that Mr. Sarcone's representations of Mr. Edwards' intent would

be sufficient. Certainly throughout a criminal case, we rely

on defense counsel to make representations on their client's

behalf routinely. This is not a situation where the defendant

would be testifying in his own trial and it would be important

that the Court make a personal colloquy.

However, certainly if the Court wishes to have

Mr. Edwards here to make that record outside the presence of

the jury, the Government has no objection. We simply believe

that Mr. Sarcone's representations are sufficient.

THE COURT: Thank you.

Mr. Bertogli, anything further?

MR. BERTOGLI: Yes. Answering that question and

getting back to the concept of judicial immunity --

THE COURT: I mean, let's make it clear. You said

that the Eighth Circuit hasn't addressed it, but the Eighth

Circuit specifically called it an extraordinary remedy and that

it's not in any way founded -- quoting the Eighth Circuit,

"Copozzi did not seek an order from the district court

compelling the Government to immunize these witnesses.

Instead, he invited the district court to fashion an

extraordinary remedy: judicial immunity, 'the power of a Court,

unaided by statute, to order that a witness's testimony cannot

be used against him.'"

And that's the extraordinary remedy you're requesting

this Court use should the Government, as it indicated, decline

to grant Mr. Edwards immunity for his testimony in this trial?

MR. BERTOGLI: That's correct, Your Honor. I've

stated the Copozzi court -- it's my understanding it's the only

Eighth Circuit case that's addressed the concept of judicial

immunity, recognizing that other circuits have recognized that,

but not going as far as saying we think such an animal exists,

but we think that in this case that the facts under Copozzi

didn't merit it. That's what they said.

I don't think that they claimed an overall statement

that it could never be given, and certainly "extraordinary

circumstances" is a suggestion that it can be -- that it can be

granted under those exceptional or extraordinary circumstances.

And I think on a case-by-case basis, weighing the

defendant's right to compulsory process and to provide due

process in a criminal trial as against a defendant's right

against self-incrimination and fashioning a remedy so as to

allow compulsory process to exist, the judicial immunity

concept discussed and recognized by the Eighth Circuit and the

other circuits that I've cited certainly suggests that far more

has to happen than what happened in that case factually for

that remedy to be appropriate.

And what I am suggesting and arguing in this case is

that it is appropriate in this case because Mr. Edwards, if he

is going to take the Fifth Amendment, it would be only because

he's been basically threatened by the Government with

withholding acceptance of responsibility and obstruction of

justice at his sentencing and possibly perjury charges, which

the Government is basing its statements in its motion to

continue his sentencing that was set for October -- they filed

a motion ~~ the Government filed a motion to continue

sentencing citing this very trial as a reason to continue his

sentencing.

Well, that just means they're going to hold over his

head, should he not exercise his Fifth Amendment, an intention

to seek enhanced sentencing under the advisory guidelines

and -- because they don't believe that if he testifies at a

trial in this case consistent with the prior notarized

statement that he provided, that that's the truth.

Well, obviously, the Government doesn't get to decide

what the truth is or not. That's usually -- that's obviously a

jury question. And in order to get it before a jury, it has to

be presented in some fashion to be determined whether or not

he's telling the truth or not. The credibility is not in the

hands of the Government. The Government doesn't get to decide

who is telling the truth and what the truth is, so --

THE COURT: I think the point of the Government's

position -- and it is not improper -- is that by terms of his

plea agreement -- the plea agreement requires him to be -- to

not act contrary to the law. If they present evidence that

what he says is false, then that would, under the Eighth

Circuit precedent, be obstruction of justice and allow for a

denial of acceptance of responsibility, which would not be an

improper use of process to have him held to the terms of his

plea agreement.

So I understand your argument, Mr. Bertogli.

MR. BERTOGLI: All right.

THE COURT: I think that your reading of the Copozzi

case is generous at best and disingenuous on its face. The

Eighth Circuit's language in Copozzi talks about the fact that

every circuit that has considered the Third Circuit's Smith

holding has held that it's been a violation of the doctrine of

separation of powers. "We decline to follow Smith and reassert

our doubt that the Court has the power to order such a grant of

judicial immunity."

That's what they say. That's what I'll follow.

There's nothing in that case that suggests that this Court has

the authority to do so.

They go on to talk about that even assuming a district

court has authority to immunize defense witnesses, unaided by

federal statute, it's clear that such an order is an

extraordinary remedy, to be used sparingly, and then only when

proffered evidence is clearly exculpatory.

I don't need to get to that second discussion because

of the fact that the Eighth Circuit clearly states that they

decline to follow Smith and they reassert their doubt that the

Court has the power inherent in its being to order such a grant

of judicial immunity.

So I understand your position, and the Court will not

engage in the practice of creating and expanding its authority

beyond what is authorized by the Constitution or statute.

For purposes of the record --

Anything else, Mr. Bertogli?

MR. BERTOGLI: Other than -- if the Court's ruling is

that the Government is not going to order the -- if the Court

is not going to order the Government to grant immunity and the

Court is not going to fashion a judicial immunity remedy,

then --

THE COURT: Under what authority can I order them to

grant immunity?

MR. BERTOGLI: Well, I guess it was -- Smith is what I

based it on. That was the procedures they were using.

THE COURT: The Eighth Circuit rejected Smith. I

Similarly will follow the Eighth Circuit in rejecting Smith.

Tt's a separation of powers issue. I'm not going to order the

Government to do something in their -- under their law

enforcement authority that they deem inappropriate for purposes

of their prosecution of this case. And there is no suggestion

anywhere in any of this that they are doing so for any type of

unconstitutional purpose in any way that would be violative of

due process or the rights of anyone involved.

So, no, I am not going to order them to do it. No, I

don't believe that I have the authority inherent in my position

to create judicial immunity. And I believe the Government has

made clear that they don't intend to offer Mr. Edwards

immunity.

Ms. Shotwell, that's accurate?

MS. SHOTWELL: That's accurate, Your Honor.

THE COURT: And the Court notes that he's pleaded

guilty and he has a plea agreement, and those are the terms

under which he's operating, and that is where -- and even in

the Copozzi case, they talk about the existence of plea

agreements and those terms and what impact they have on these

discussions as well.

MR. BERTOGLI: Well --

THE COURT: Thank you, Mr. Bertogli.

MR. BERTOGLI: All right. Thank you.

Whether it's needed in the record or not, I would just

distinguish Mr. Edwards' plea agreement in this case didn't

call for him to allocute to any facts relating to his

relationship with Mr. Simmons or any of the allegations of

Count 5 in the indictment regarding the purported distribution

of methamphetamine in February of 2020.

In Mr. Edwards' plea agreement, he doesn't actually

make any statements about that, so that's the only factual

distinction I would offer relating to the contents of his plea

agreement. He didn't allocute to any facts related to

Mr. Simmons contained in the statement of facts.

THE COURT: I understand your position.

MR. BERTOGLI: Okay. And I understand that's not

going to change the Court's decision relating to its authority,

inherent authority, under the Eighth Circuit's Copozzi case. I

just wanted to make it clear that his plea agreement doesn't

provide for him to make -- it didn't provide for him to

allocute to any facts relating to his relationship or knowledge

of Mr. Simmons's activities.

THE COURT: The Court notes that the plea agreement

also contains -- it's at document 228 of the record and

includes at paragraph 14 a paragraph entitled Acceptance of

Responsibility which specifically states that the Government

reserves the right to oppose a reduction under 3EH1.1 if, after

the plea proceeding, Defendant obstructs justice, does other

things, or otherwise engages in conduct not consistent with

acceptance of responsibility.

So I will -- based upon the Government's

representations that they do not intend to offer Mr. Edwards

immunity and my legal determination that I do not have the

authority to offer judicial immunity and the Eighth Circuit's

rejection of the Smith reasoning and Mr. Sarcone's assertion of

Mr. Edwards' Fifth Amendment rights, I believe the matter is

resolved.

I will spend some time today looking at whether or not

I believe that it is in the best interest of the record to have

Mr. Edwards personally appear and make a record on Tuesday.

T'll also discuss with the marshals what the logistics of that

would look like because, obviously, transportation would be

complicated because he would need to be transported separately

from these defendants, so that is the only aspect of this

decision that remains outstanding.

The Court will communicate -- so, for all the reasons

I've stated, the request for the -- because Defendant Edwards

has indicated he intends to assert his Fifth Amendment right

and the Court is not going to compel that testimony through any

of the means suggested by the defense -- to the extent it's a

motion from the defense, that's denied. To the extent that

it's a motion from the Government to keep him from testifying,

that's granted.

But I leave open the issue of whether or not

Mr. Edwards will appear personally to do that. We'll address

that as soon as we can. It would not be Monday. It would be

Tuesday, and, of course, it would be outside the presence of

the jury.

I want to look at the case law and see what it

suggests the best record is so that Mr. Bertogli can have the

record he needs for appeal and the Court has the benefit of

whatever the other courts have done as guidance.

Any additional record in that regard from the

Government?

MS. SHOTWELL: No, Your Honor, not with respect to

Mr. Edwards' testimony specifically. The Government would like

to address the admissibility of the notarized statement at some

point.

THE COURT: Right. Mr. Sarcone doesn't need to be

here for that, though.

Mr. Bertogli, any additional record in that regard?

MR. BERTOGLI: No, Your Honor.

THE COURT: Mr. Dyer, you don't have a dog in this

fight, but any record in that regard?

MR. DYER: I don't have any record. Thank you.

THE COURT: Thank you.

Mr. Sarcone, anything else you need to bring to the

Court's attention?

MR. SARCONE: Just to the extent, Your Honor, I don't

know how logistically it's going to work, but Monday I am up in

northwest Towa all day.

THE COURT: You would not be required to be in court

on Monday. We will select a jury on Monday. The Government

will present its case in chief. If the Court decides it's

prudent to have Mr. Edwards personally appear, I would ask for

you to be present at the same time, but also it would not be

until Tuesday.

MR. SARCONE: Okay. Great. Thank you, Your Honor.

THE COURT: Thank you. And you are excused from these

proceedings.

MR. SARCONE: Thank you.

THE COURT: All right. So that addresses that issue.

PROCEEDINGS

(In open court, with the defendants present, outside

the presence of the prospective jury panel.)

THE COURT: Thank you. Please be seated.

Good morning. We are here in the matter of the United

States of America versus Terry Eugene Hambrick and Kieffer

Michael Simmons, 4:20-cr-189. This is the time and date set

for trial in this matter. My name, as you know, is Rebecca

Goodgame Ebinger, and I'm the district judge presiding.

If counsel would please identify themselves for

purposes of the record.

MS. TUBBS: MacKenzie Tubbs and Mikaela Shotwell on

behalf of the United States. We're also joined by Joseph

Christensen at counsel table as case agent.

MR. DYER: Jonah Dyer on behalf of Terry Hambrick, who

is seated here to my right.

MR. BERTOGLI: Joe Bertogli on behalf of Kieffer

Simmons.

THE COURT: Thank you.

So we had a final pretrial conference last week. We

left a couple of issues outstanding that I wanted to talk about

quickly this morning. The first is the issue in regards to

Mr. Edwards' assertion of his Fifth Amendment right.

Mr. Sarcone, his attorney, very clearly stated on Friday

morning that Mr. Edwards intended to assert his Fifth Amendment

right not to testify.

I have reviewed the case law on this. I have not been

able to find anything that suggests that a personal invocation

of that is required. The Highth Circuit's leading case on this

that I find instructive is Washington, and in that case, the

discussion was all with the witness's counsel.

Mr. Bertogli, are you aware of any authority that

requires the personal invocation of the Fifth Amendment right

for a witness?

MR. BERTOGLI: I'm not aware of any case law,

Your Honor, but, obviously, over the course of the years where

that issue has come up, it's been my understanding in the last

35 years through Judges Vietor, Wolle, Longstaff, that the

record made was with the defendant personally at or close to

the time of trial outside the presence of the jury to determine

whether or not that individual was going to assert their rights

of self-incrimination under the Fifth Amendment or not.

THE COURT: Thank you, Mr. Bertogli.

So the Court has reviewed the case law. I respect my

colleagues, and, of course, those esteemed jurists mentioned by

Mr. Bertogli undoubtedly have the discretion to proceed as they

see fit.

In my reading of the law and based upon the record we

made on Friday, I can find no authority that requires such

action to be taken.

The question for the Court is whether there has been a

record made that establishes that the witness intends to invoke

his Fifth Amendment right and whether or not such a right is

properly invoked because there are substantial and real risks

for self-incrimination and that it's not trifling or imaginary.

Here the record supports that finding. The

United States indicated that it believed the testimony would

involve the drug transaction on February 28. The letter

originally provided to the Court back in April deals with the

February 28 drug transaction that Defendant Leon Edwards has

not otherwise admitted, and the Government's filing in regards

to the potential for prosecution for perjury or obstruction of

justice, as filed with the Court in their motion to continue

sentencing, further supports the real and substantial risk of

self-incrimination facing Mr. Edwards should he choose to

testify.

Based upon that record, the Court does find that the

witness's invocation of his right not to testify through

counsel is justified and no further record is required.

Any additional record in that regard from the

Government?

MS. TUBBS: No, Your Honor.

THE COURT: Ms. Tubbs, I believe we covered this on

Friday with Ms. Shotwell, but you're aware of no authority that

requires Mr. Edwards to personally invoke his Fifth Amendment

right?

MS. TUBBS: That is correct, Your Honor.

THE COURT: Thank you.

So, with that record, the marshal service is notified

that transportation of Mr. Edwards tomorrow will not be

required. The record on the matter has been fully made, and

the Court's ruling in that regard is as indicated now.

That brings up the issue of the -- that brings up the

issue of the proffered defense exhibit. Mr. Bertogli's written

materials suggest that should the defendant not be permitted to

call Mr. Edwards, that he should be permitted to present the

affidavit identified at -~ or not affidavit -- the notarized

statement identified as Defense Exhibit BB.

Would you like to be heard in that regard,

Mr. Bertogli?

MR. BERTOGLI: Yes, Your Honor.

Further, as it relates to the record regarding the

personal appearance of Mr. Edwards, Mr. Simmons would, for the

record, assert that that additional record with him personally

would need to be made in order to preserve that for appeal.

The Court has declined to provide Mr. Simmons that opportunity

to make that record.

THE COURT: I'm sorry. I've asked you for any

authority that requires that. You've told me you don't know of

any, and you're now saying that I am not allowing you to make a

record. The record is made that you've asked to have

Mr. Edwards personally appear. His counsel appeared and put

forth the record that is required under United States v.

Washington, and so I'm unclear as to what record you're further

making now.

MR. BERTOGLI: Other than I disagree and, for the

purposes of the record, would assert that personal presence is

required for purposes of furthering that on appeal. That's

all.

THE COURT: Noted. I asked you about your argument in

regards to the admission of Exhibit BB.

MR. BERTOGLI: Correct. And I would, as in the

written materials, urge that Exhibit BB should be admitted out

of fundamental fairness since Mr. Simmons is being deprived of

his rights to compulsory process by virtue of the exercise of

Mr. Edwards' Fifth Amendment right against self-incrimination.

I would urge that Rule 807 of the Federal Rules of

Evidence applies because the statement under subparagraph 1 of

that rule is supported by sufficient guarantees of

trustworthiness considering the totality of the circumstances

under which it was made, and, number two, that it's more

probative on the point for which it's offered because there's

no other evidence available to Mr. Simmons which would -- which

he could obtain expending reasonable efforts to provide that

evidence. The motions were -- or the writ of -- the writ of ad

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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.