United States of America v. Tujuane Leno Lowry

United States Court of Appeals
For the Eighth Circuit
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No. 23-2942
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Tujuane Leno Lowry,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the District of South Dakota - Northern
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Submitted: May 10, 2024
Filed: August 15, 2024
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Before COLLOTON, Chief Judge, BENTON and SHEPHERD, Circuit Judges.
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COLLOTON, Chief Judge.
Tujuane Lowry pleaded guilty to unlawful possession of a firearm as a felon.
See 18 U.S.C. § 922(g)(1). He reserved the right to appeal two orders of the district
court* denying motions to dismiss the indictment. We conclude that there was no
error and affirm the judgment.
I.
The principal issues on appeal involve Lowry’s detention in state custody while
this federal case was pending. In June 2022, prosecutors in South Dakota charged
Lowry with several offenses. State authorities detained Lowry at the county jail in
Aberdeen pending trial. In August 2022, a federal grand jury indicted Lowry for
possession of a firearm as a felon.
The United States Marshals Service sent copies of the indictment and an arrest
warrant to a Sergeant Miller at the Aberdeen police department. Miller forwarded the
documents to the jail, but asked the jail staff not to serve the warrant on Lowry. A
deputy sheriff, however, mistakenly gave Lowry these documents, filled out the
“Return” portion of the warrant, and wrote that Lowry “was arrested on 8/10/22.”
The deputy did not notify Sergeant Miller or federal authorities of her actions.
Federal officials withheld action on the federal case and allowed Lowry’s state
proceedings to continue. The federal indictment remained under seal, so Lowry was
unable to obtain information about his federal case while in state custody. Lowry
*The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota, adopting the report and recommendations of the Honorable
Mark A. Moreno, United States Magistrate Judge for the District of South Dakota.
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remained in the jail for seven months after receiving the federal indictment and arrest
warrant.
On March 10, 2023, after the state trial date was continued, the government
moved the court to unseal Lowry’s federal indictment and obtained a writ of habeas
corpus ad prosequendum that allowed for the transfer of Lowry from state to federal
custody. Lowry appeared in federal court on March 15, one day after the writ was
executed.
Lowry twice moved to dismiss the federal indictment. The first motion argued
that the government failed to present him promptly to a federal magistrate judge as
required by the rules of criminal procedure, violated his substantive due process
rights under the Fifth Amendment, and violated his right to a speedy trial under the
Sixth Amendment. The second asserted that the felon-in-possession statute, 18
U.S.C. § 922(g)(1), is unconstitutional. The district court denied both motions, and
Lowry entered a conditional plea of guilty that reserved his right to appeal. The court
sentenced Lowry to 84 months’ imprisonment on the gun charge and entered
judgment. The district court’s rulings on the motions involve legal questions that we
review de novo. United States v. Cooke, 853 F.3d 464, 470 (8th Cir. 2017).
II.
Lowry first argues that the government violated his substantive due process
rights by delaying his presentation to a federal magistrate judge. Lowry cites the
seven-month period between the date when the sheriff’s deputy delivered the federal
arrest warrant to him in the county jail and his initial appearance in federal court. He
maintains that the government violated his rights by failing to remove him from state
custody to present him in federal court.
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Presentment is governed primarily by a rule of criminal procedure. Rule 5(a)
requires an arresting officer to take a defendant before a magistrate judge “without
unnecessary delay.” Fed. R. Crim. P. 5(a). This rule, however, applies only to
persons “arrested and held under federal law.” Cooke, 853 F.3d at 470.
Lowry contends that the sheriff’s deputy arrested him on the federal warrant
in August 2022 at the county jail and triggered an obligation under the rule. We
disagree because the deputy did not seize Lowry anew or transfer him to federal
custody. By delivering the indictment and warrant to the jail through a local police
officer, the Marshals Service effectively lodged a detainer against Lowry. That action
merely put the jailers on notice that Lowry was wanted by federal authorities after his
release from state custody. See United States v. Mauro, 436 U.S. 340, 358 (1978).
There was no arrest, and the presentment requirement of Rule 5(a) was not triggered.
Even so, Lowry presses the unlikely contention that the government’s conduct
violated his constitutional rights without violating the applicable rule of procedure.
Substantive due process is an extreme concept. To justify the dismissal of an
indictment, a defendant must show “outrageous” government action that “shocks the
conscience.” United States v. Jones, 70 F.4th 1109, 1112 (8th Cir.), cert. denied, 144
S. Ct. 366 (2023). When a claim involves a delay in presentment, we consider
whether the government exhibited “[d]eliberate indifference to prisoner welfare.” Id.
at 1112-13 (internal quotation omitted). This standard was met, for example, where
a jailer held an arrestee for more than a month without a court appearance, despite the
arrestee’s plea to see a judge and the jailer’s knowledge that an arrestee was entitled
by law to appear “without unnecessary delay.” Hayes v. Faulkner County, 388 F.3d
669, 673-74 (8th Cir. 2004).
The circumstances here do not approach the level of a due process violation.
The deputy’s inartful completion of the arrest warrant did not affect Lowry’s welfare.
He had appeared before a state judge and was properly detained in state custody
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pending his prosecution on state charges. Lowry complains that the government did
not promptly unseal the federal indictment. Without an arrest, however, it was proper
for federal authorities to defer to state proceedings before initiating the federal
prosecution. See United States v. Schreane, 331 F.3d 548, 554-55 (6th Cir. 2003).
There was no violation of Lowry’s constitutional rights based on the timing of his
appearance in federal court.
Lowry next contends that the government violated his right under the Sixth
Amendment to a speedy trial. To trigger a speedy-trial analysis, however, an accused
must show that the interval between accusation and trial “has crossed the threshold
dividing ordinary from ‘presumptively prejudicial’ delay.” Doggett v. United States,
505 U.S. 647, 651-52 (1992) (internal quotation omitted). The nine-and-a-half
months that elapsed between indictment and guilty plea in this case fall short of the
duration required for presumptive prejudice. See United States v. Leveke, 38 F.4th
662, 671-72 (8th Cir. 2022); United States v. White Horse, 316 F.3d 769, 774 (8th
Cir. 2003). The court thus properly rejected Lowry’s claim under the Sixth
Amendment.
Lowry also argues that his conviction under 18 U.S.C. § 922(g)(1) violates his
constitutional right to keep and bear arms under the Second Amendment. Lowry’s
contention is foreclosed by our decision in United States v. Jackson, No. 22-2870,
2024 WL 3711155, at *4 (8th Cir. Aug. 8, 2024).
The judgment of the district court is affirmed.
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