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United States v. Jereb

United States Court of Appeals, Tenth Circuit

February 27, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
AARON BRADLEY JEREB, Defendant-Appellant.

         Appeal from the United States District Court for the District of Utah (D.C. No. 2:15-CR-00610-TC-1)

          Scott Keith Wilson, Assistant Federal Public Defender (Kathryn N. Nester, Federal Public Defender, and Jessica Stengel, Attorney, with him on the briefs), District of Utah, Salt Lake City, Utah, for Defendant - Appellant.

          Ryan D. Tenney, Assistant United States Attorney (John W. Huber, United States Attorney, with him on the brief), District of Utah, Salt Lake City, Utah, for Plaintiff -Appellee.

          Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges.

          MCHUGH, CIRCUIT JUDGE.

         Following a jury trial, Aaron Bradley Jereb was convicted of forcibly opposing a federal officer, in violation of 18 U.S.C. § 111(b), along with three lesser crimes. The trial judge sentenced Mr. Jereb to prison for seventy-two months, to be followed by thirty-six months of supervised release. As a special condition of that release, Mr. Jereb will be required to participate in a mental health treatment program.

         Mr. Jereb asks this court to vacate his § 111(b) conviction and remand for a new trial. In the alternative, he asks us to reverse the imposition of mental health treatment and remand for resentencing. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm both the conviction and sentence.

         I. BACKGROUND

         A. Factual History

         This case arises out of a roadside brawl between Mr. Jereb and Darren Schiedel, [1] a law enforcement officer of the United States Forest Service. Officer Schiedel and his K-9 partner, a German Shepherd called Livo, were driving home on October 15, 2015, when they happened upon a red Chevrolet Blazer parked on the side of a remote, narrow road in Uinta-Wasatch-Cache National Forest ("Uinta"). Thinking that unusual given the late hour and lack of nearby recreation opportunities, Officer Schiedel decided to stop, pulling up behind the Blazer. He engaged his truck's side spotlight, exited, and approached, for the moment leaving Livo behind.

         Mr. Jereb was seated in the Blazer's front passenger seat. His girlfriend at the time, Amber Haanpaa, was in the driver's seat. That morning, Mr. Jereb and Ms. Haanpaa each took three to five hits of methamphetamine and then drove from their home in Rock Springs, Wyoming, to Salt Lake City, Utah, apparently for the purpose of retrieving Mr. Jereb's motorcycle from impoundment.[2] Those plans soon changed. Upon arriving in Salt Lake City, Ms. Haanpaa purchased $900 worth of heroin, some of which she and Mr. Jereb intermittently smoked in a downtown parking lot for the next 90 minutes or so.[3] Eventually, Mr. Jereb and Ms. Haanpaa got something to eat and then spent an hour or two at a music store before setting off for the three-hour trek back to Rock Springs. On the way out of town, they stopped at Uinta's Lambs Canyon to again use drugs, as was Ms. Haanpaa's custom on her return trips from Salt Lake. Ms. Haanpaa pulled out a sheet of heroin and started smoking it; she believes Mr. Jereb partook. Next, she crushed some methamphetamine on a mirror and snorted it with a "tooter, " or a rolled-up receipt. She handed the tooter to Mr. Jereb, who was about to snort the next line when Officer Schiedel pulled up behind them.

         Ms. Haanpaa attempted to hide the drug paraphernalia, but her efforts were to no avail. About two hours later, after investigation and questioning not relevant on appeal, Officer Schiedel wrote drug possession citations for both Mr. Jereb and Ms. Haanpaa. Believing Mr. Jereb was sober enough to drive back to Wyoming, Officer Schiedel told them they were free to go. At trial, Officer Schiedel testified that he "wanted out of there at that point." App. App'x, Vol. III, at 355. Mr. Jereb's erratic behavior worried him. He was "wild eyed, " with "a real direct gaze about him, " and "it was getting to the point where I was starting to get a little bit concerned about his demeanor towards me." Id. at 317. When Officer Schiedel attempted to hand him his citation, for instance, Mr. Jereb just stared into Officer Schiedel's eyes. But the Blazer's engine would not start, so Ms. Haanpaa asked Officer Schiedel if he would be willing to use his patrol truck to jumpstart it. Not wanting to leave them stranded, Officer Schiedel agreed.

         Mr. Jereb exited from the driver's seat, put on a black leather jacket, and retrieved jumper cables from the back of the Blazer. That concerned Officer Schiedel because the jumper cables "seemed like a pretty good weapon." Id. at 356. He was also concerned that Mr. Jereb may have put on the leather jacket for the purpose of protecting himself in the event of a fight. Nevertheless, they succeeded in jumpstarting the Blazer without incident. Officer Schiedel detached the jumper cables from the battery and started to return to his patrol truck. At trial, he described what happened next:

. . . Mr. Jereb was standing by the front right quarter panel on the passenger side. He looked [at] me, I would say close to my eyes but not really. It appeared to me that he was looking at my face or slightly above my eyes, not like making eye contact at this point.
. . . .
When I started to retreat back to my vehicle, he stated, you don't look so good, officer, something to that effect. And I said, I feel great. I feel fine. He moved around the vehicle to where we were both in front of the red Chevy Blazer and said, again, stated, you don't look so good. And I again replied, you know, I feel fine. Confusing words to me at that time.
[Prosecutor:] What did you do after the second time the defendant told you you didn't look so good?
[Officer Schiedel:] The way my radio is positioned on my body, I would have reached up with my left hand and engaged the radio and stated my name or my call sign and asked for a backup unit at that point.
. . . .
[Prosecutor:] When you called for backup, was Mr. Jereb within a distance where he would have heard what you said?
[Officer Schiedel:] Within slightly over probably an arm's reach, probably within four feet of me.
[Prosecutor:] And would you have said it loud enough so he could have heard?
[Officer Schiedel:] I would have to.
[Prosecutor:] When you called for backup, what happened?
[Officer Schiedel:] I don't remember anything happening on the radio. Our radio, there's a beep prior to the transmission or after, and I can't recall at this time, to allow you to know that that transmission has gone out. I don't remember hearing anything on the radio at that point.
[Prosecutor:] And did the defendant say something at that point?
[Officer Schiedel:] Yes.
[Prosecutor:] What did he say?
[Officer Schiedel:] They're not going to get here in time to help you.
[Prosecutor:] Officer Schiedel, how did you take that statement from the defendant?
[Officer Schiedel:] Aggressive, assaultive statement.
[Prosecutor:] Did you have a reaction to his statement that they wouldn't get there in time to help?
[Officer Schiedel:] I did. I reached out and pushed my deployment button for canine Livo.

Id. at 358-60. Officer Schiedel testified that Livo immediately came to his side. Mr. Jereb then "made some comments to the dog, c[a]joling him, kind of trying to get him, drawing him to him, saying what a nice dog he was and tried to get him to come to him." Id. at 362.

         At around this time Ms. Haanpaa exited the Blazer, where she had been sitting, and asked Mr. Jereb to return to the Blazer. According to Officer Schiedel, Livo responded by repositioning himself in between Officer Schiedel, Mr. Jereb, and Ms. Haanpaa, bringing him closer to Mr. Jereb than he had been previously. Mr. Jereb then "reached out very quickly and grabbed canine Livo" by his collar, twisting it and causing Livo to scream in pain. Id. at 368, 370-71. From there, Officer Schiedel's recollection is limited:

[Officer Schiedel:] When I heard the scream, I don't remember anything from that point. I have a very hard time remembering. My guess is I stepped forward to defend my partner.
. . . .
[Prosecutor:] Was there a physical confrontation?
[Officer Schiedel:] I believe so, yes.
[Prosecutor:] Tell us, walk us through, Officer Schiedel, what you recall transpiring after the defendant had grabbed the collar.
[Officer Schiedel:] I have no memory from the initial contact. I remember from the front left quarter panel where we were standing next to my vehicle, I remember-my next recollection is farther from there to the west, which would have been towards the hillside, the next recollection that I have is canine Livo had Mr. Jereb down on the ground by his right forearm. Our dogs are bite and hold. He had bitten his right arm and was holding him down. And I can remember his back, and I remember thinking, this is probably a good place to use a Taser. I think the Taser was already in my hand at that point, so I deployed the Taser at that point.

Id. at 372. Ms. Haanpaa, on the other hand, gave a somewhat different account.[4]

         Ms. Haanpaa was sitting in the driver's seat when the Blazer was jumpstarted; she turned the key in the ignition. Once the car was running, she remained in the driver's seat for a minute or two, waiting for Mr. Jereb, who was still outside. It was late at night and she could not see either man from the driver's seat, so she exited the vehicle "to go see what was going on and why we were not leaving." Id. at 723. She then testified as follows:

[Ms. Haanpaa:] I saw Aaron and the officer just standing looking at each other. They were talking. I couldn't hear what they were saying because the Blazer was on and it is a really loud vehicle.
[Prosecutor:] What did you see next?
[Ms. Haanpaa:] I saw the officer say something in his radio and he pulled out his taser and it got crazy.
[Prosecutor:] What is Officer Schiedel saying now?
[Ms. Haanpaa:] Telling Aaron to get down.
[Prosecutor:] How are you able to hear him now?
[Ms. Haanpaa:] Because I had walked over to him. I was in front of the vehicle, in front of Aaron's vehicle.
[Prosecutor:] How many times does Officer Schiedel tell Mr. Jereb to get down?
[Ms. Haanpaa:] Well, he took out his taser and tased Aaron. That kind of dropped him down but it didn't completely-like he was not like on his back or anything. It didn't completely like stop him. Aaron just kind of sat on his butt and that is when Schiedel came up to him and grabbed him on his shoulder and was telling him that he needs to get on his stomach and put his hands behind his back.
. . . .
[Prosecutor:] Can you briefly describe to the jury how Mr. Jereb is sitting on the ground now?
[Ms. Haanpaa:] He is kind of sitting Indian style, but he has got his left leg up, so his one leg was crossed like he was sitting Indian style and the other leg was up just like he was posted up on his leg.
[Prosecutor:] What is Officer Schiedel saying to him?
[Ms. Haanpaa:] He is just telling him that he needs to get his hands behind his back, but at that time the dog appeared out of nowhere. I don't know how the dog got there, but he just-Schiedel kept telling Livo-he would just nod his head to the dog and the dog would bite him.

Id. at 724-25. Ms. Haanpaa testified that she witnessed Mr. Jereb's interactions with Livo, and she said Mr. Jereb neither touched his collar nor tried to lure him to his side. She further testified that Mr. Jereb was Tased by Officer Schiedel before he was bitten by Livo.

         Officer Schiedel acknowledged that he could not recall whether he drew his Taser before or after Mr. Jereb grabbed Livo's collar. He did recall, however, that Livo was still biting Mr. Jereb's right arm while he discharged the Taser onto Mr. Jereb's back while Mr. Jereb lay on his stomach. From there, Officer Schiedel believes he was on top of Mr. Jereb trying to handcuff him, which proved difficult with a Taser in his left hand and Livo attached to Mr. Jereb's right forearm. So Officer Schiedel commanded Livo back to the patrol truck. But Officer Schiedel still was unable to handcuff Mr. Jereb, who, free of Livo, flipped onto his back so that the two men were on the ground, face to face. At around this time, Officer Schiedel believes he lost his Taser to Mr. Jereb, who then used it "against my face, my neck and maybe down my arm, " before Officer Schiedel was able to take it back. Id. at 383-84. He estimated that he and Mr. Jereb had been on the ground fighting for about four minutes at this point. Ms. Haanpaa testified that she never saw Mr. Jereb with the Taser, and in fact "[t]he officer never let go of the taser, that I could see." Id. at 749.

         Officer Schiedel commanded Livo to return and told him to bite and hold Mr. Jereb again. He also used his Taser to drive Mr. Jereb back onto his stomach. Still unable to handcuff Mr. Jereb, the fight continued:

[Officer Schiedel:] At some point from when we were engaged on the left side of the vehicle just behind the driver's side door, I remember Livo biting his right arm. It would have been a full mouth bite. Mr. Jereb, I'm assuming it was his left, it would have to be his left thumb, he was taking his left thumb and trying to get it into the dog's eye. He was jabbing it into his eye, which I would have guessed it was to try to get the dog to come off the bite, to stop biting him at that point.
THE COURT: What's a full mouth bite?
[Officer Schiedel:] Your Honor, when I'm referring to a full mouth bite, the rear of the teeth are engaging the forearm all the way. If I would have said frontal, it would have been the canine's shallow on the bite. Full mouth bite is deep. The individual that's being bit is going to have more ...

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