153592P.pdf   08/14/2017  United States  v.  Gerald Wayne LeBeau
   U.S. Court of Appeals Case No:  15-3592
                          and No:  15-3653
   U.S. District Court for the District of South Dakota - Rapid City   
   [PUBLISHED] [Kelly, Author, with Loken and Colloton, Circuit Judges] 
   Criminal case - Criminal law and sentencing. The district court did not 
   clearly err in determining that defendant Gerald LeBeau consented to 
   searches of his hotel room and car; based on the totality of the 
   circumstances, the consent was voluntary; assuming that the officers' 
   initial entry into Gerald's room was unconstitutional, Gerald's voluntary 
   consent to the search of his car was the product of free will sufficient 
   to purge the taint of the agents' presumed illegal entry in the hotel 
   room; as a result, the doctrine of the fruit of the poisonous tree does 
   not compel suppression of the evidence found in the car; no issue was 
   raised in the district court concerning the seizure of Gerald's wallet and 
   keys, and an issue raised for the first time on appeal would not be 
   considered; a reasonable person could conclude from Gerald's statement 
   that he was not unequivocally requesting the right to proceed pro se, and 
   the district court did not violate his right to represent himself by 
   proceeding with appointed counsel; the proposed testimony Gerald sought to 
   introduce through certain witnesses he wanted to subpoena was not relevant 
   or admissible, and the district court did not err in quashing the 
   subpoenas for these witnesses; government's failure to preserve certain 
   video surveillance recordings did not require dismissal of the case 
   because the evidence had no exculpatory value; no error in admitting 
   jailhouse recordings of Gerald's phone calls as the government laid a 
   proper foundation for their admission;Gerald's sentence did not exceed the 
   statutory maximum, and the district court's finding of certain sentencing 
   facts did not violate Gerald's rights; the district court did not err in 
   admitting evidence of Neil LeBeau's prior drug conviction as the 
   conviction was relevant to his state of mind - namely, his intention to 
   enter into the charged conspiracy; no error in admitting jailhouse 
   recordings of Neil's conversations; no error in denying Neil's motion to 
   sever his case from Gerald's as Gerald's statements on the jailhouse 
   recordings did not implicate the Confrontation Clause.