                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 January 20, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 09-1319
 v.                                                      (D. Colorado)
 MITCHELL JAMES PETHICK,                       (D.C. No. 08-CR-00023-REB-1)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TACHA, ANDERSON, and BRISCOE, Circuit Judges.



      Defendant and appellant Mitchell James Pethick was charged with one

count of driving under the influence on the United States Military Reservation at

Fort Carson, Colorado, in violation of Colo. Rev. Stat. § 42-4-1301(1)(a),

applicable to him through 18 U.S.C. § 13. 1 After a jury found him guilty,


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.

      1
       Section 13 of the Assimilative Crimes Act (“ACA”) (18 U.S.C. § 13) was
enacted to fill gaps in the criminal laws otherwise applicable to federal enclaves
by incorporating state law. See United States v. Adams, 140 F.3d 895, 896 (10th
Cir. 1998). The Act provides “a method of punishing a crime committed on
government reservations in the way and to the extent that it would have been
Mr. Pethick was sentenced to fifteen days’ imprisonment and a fine of $300, as

well as one year of supervised release and a special assessment of $25. This

appeal followed. 2



                                  BACKGROUND

      The following facts are largely derived from the district court’s opinion.

Mr. Pethick does not challenge the accuracy of the district court’s recitation of

the facts, and these facts comport with our own review of the record.

      Mr. Pethick and three friends spent a few hours late in the evening of

February 10, 2006, drinking at a local bar in Colorado Springs, Colorado. In the

early hours of the following morning (February 11), Mr. Pethick and his friends

decided to go to the store located at the nearby Fort Carson Army Post to

purchase more alcohol. They accordingly drove to entrance Gate 20, arriving

around 2:30 a.m. Pursuant to government policy, a military guard stopped the

vehicle and spoke to Mr. Pethick, who was driving, and his friends. Also

pursuant to government policy, the Gate is subject to constant camera surveillance

and recording. Furthermore, at the approach to the Gate, there is a large sign

which states in pertinent part:


punishable if committed within the surrounding jurisdiction.” Id. (quoting United
States v. Garcia, 893 F.2d 250, 253 (10th Cir. 1989)).
      2
        A prior appeal to this court was dismissed without prejudice, for lack of
jurisdiction. United States v. Pethick, 513 F.3d 1200 (10th Cir. 2008).

                                         -2-
                                 ENTRY IMPLIES:

               CONSENT TO BREATH/BLOOD ALCOHOL TEST

                    CONSENT TO SEARCH UPON REQUEST

      Mr. Pethick and his companions gave their identification cards to the guard,

who asked all of them to get out of the car. Mr. Pethick admitted that he had

consumed alcohol and stated that the purpose of his visit was to patronize the

store on the base to purchase more. Mr. Pethick was apparently vociferous,

bellicose and generally uncooperative in his dealings with the guard, who then

called for assistance. The guard escorted Mr. Pethick to a kiosk away from the

Gate 20 area, and he was accordingly out of view of the surveillance camera for

the duration of the encounter that night.

      A specialist officer who arrived in response to the guard’s call, Neysa Adell

Wright, found Mr. Pethick uncooperative. She, in turn, called in a military police

officer (“MP”), who had received training in traffic issues, including the

administration of field sobriety tests. 3 The MP asked Mr. Pethick to navigate a

straight line and a pin turn while walking heel-to-toe and to extend and flex his

arms to touch his nose with his fingertips. While administering the tests, the MP

observed that Mr. Pethick smelled of alcohol, that his eyes were watery and

bloodshot, and that he spoke incoherently and with slurred speech. The MP and


      3
        The MP testified that he had made approximately thirty stops and arrests
for driving under the influence of alcohol.

                                            -3-
the specialist officer both noticed that, when he performed the walk-and-turn test,

Mr. Pethick failed to follow instructions and was unable to maintain his balance.

Both officers also observed that while performing the finger-to-nose test,

Mr. Pethick swayed, almost falling backwards at one point, and was unable to

touch his nose. Based on his observations, the MP placed Mr. Pethick under

arrest and informed him that he would be required to submit to breath or blood

testing. Subsequent testing revealed that Mr. Pethick had a blood alcohol content

of .162.

      Mr. Pethick initially received a “violation notice” for a Class A

misdemeanor. In accordance with the ususal procedures for such notices, the

violation notice was processed routinely through the Central Violations Bureau

(“CVB”) in Texas, and approximately fifty-three days elapsed before Mr. Pethick

first appeared in federal court to respond to the charge of driving under the

influence, in violation of Colorado law and the ACA. At that time, fifty-three

days after the incident leading to the charge, the government finally filed an

information pressing that charge. The government concedes it was error to

simply file a violation notice, with the result that nothing happened for fifty-three

days. Because it was standard practice to re-use videotapes and record over

existing footage every two weeks, the videotape of the particular encounter with

Mr. Pethick at Gate 20 on February 11 was unavailable at the time Mr. Pethick

was charged. Mr. Pethick argues that the government was well aware of this

                                          -4-
problem of the videotapes “disappearing” before a defendant can make use of

them at trial, having received requests for the preservation of similar videotapes

in prior cases.

      Following a two-day trial, Mr. Pethick was convicted and sentenced by the

magistrate judge. The district court affirmed that conviction and sentence. This

appeal follows from the district court’s decision affirming the magistrate judge. 4



                                   DISCUSSION

      Mr. Pethick asks us to vacate his conviction and dismiss this case with

prejudice, arguing three issues: (1) the government’s “misuse of the central

violation notice procedure in disregard of Fed. R. Crim. P. 5, coupled with the

government’s continued practice of intentional destruction of evidence prior to

Pethick’s ability to get to court, prevented Pethick from presenting a defense at

trial[,] in violation of the due process clause of the Fifth Amendment” and the

Sixth Amendment right to a Speedy Trial; (2) the district court “erred by failing

to find a Brady violation or a violation of the due process clause of the Fifth

      4
        This case comes to us in an unusual procedural posture. Technically, this
is an appeal from the district court’s review of an appeal from a magistrate
judge’s decision imposing a criminal sentence. This “derives from the fact that
Senior U.S. District Judge Daniel Sparr, who presided over the jury trial, died
prior to sentencing. [Mr. Pethick] subsequently consented to the jurisdiction of
the magistrate judge, who presided over sentencing and entered judgment against
[Mr. Pethick].” Order at 2 n.2, R. Vol. 2 at 500. The district court had
jurisdiction over the appeal from the conviction by the magistrate judge, pursuant
to 18 U.S.C. § 3402.

                                         -5-
Amendment based upon failure of the government after notice in prior cases to

preserve surveillance evidence occurring during time of contact with Pethick”;

and (3) the district court erred in finding that law enforcement officers had

“sufficient probable cause to believe Pethick was driving a vehicle in violation of

the DUI laws so that [they] could thereby require Pethick to submit to testing of

his blood.” Appellant’s Op. Br. at ii-iii.

      We note that the district court rejected all of these arguments by

Mr. Pethick in the course of its decision affirming the magistrate judge’s entry of

judgment and imposition of sentence.



      I. Due Process/Speedy Trial Claims:

      Mr. Pethick argues that the procedure used in charging him (i.e., he was

first charged with a notice violation and only later by information alleging the

same charge, which resulted in the unavailability of the videotapes) violated his

rights under the due process clause of the Fifth Amendment and his Sixth

Amendment right to a speedy trial. More specifically, he alleges that the fifty-

three-day delay between the initial charge and his appearance in federal court

violated his right to a speedy trial, and deprived him of the opportunity to request

(and possibly ensure) the preservation of the videotapes and to seek early advice

from an attorney.




                                             -6-
      “We review . . . [a] due process claim de novo.” N-A-M v. Holder, 587

F.3d 1052, 1055 (10th Cir. 2009). Additionally, we review de novo a claimed

deprivation of a speedy trial. United States v. Toombs, 574 F.3d 1262, 1268

(10th Cir. 2009).

      “To establish that the Government deprived him of due process by

destroying potentially exculpatory evidence, [Mr. Pethick] must show both that

1) the evidence destroyed was potentially exculpatory and 2) the government

acted in bad faith in destroying it.” United States v. Beckstead, 500 F.3d 1154,

1158 (10th Cir. 2007). For the reasons stated in its decision, we agree with the

district court that, even assuming some exculpatory element to the videotapes,

Mr. Pethick cannot demonstrate that the government acted in bad faith. And, to

the extent Mr. Pethick argues that the destruction of the videotapes impeded his

Sixth Amendment right to present an effective defense, we reject that argument.

As explained more fully, infra, the videotapes did not capture the conduct of the

field sobriety tests, and therefore would have provided only partial information

about Mr. Pethick’s condition. Furthermore, nothing prevented Mr. Pethick from

having witnesses who accompanied him that night provide eyewitness accounts of

what transpired.

      With respect to Mr. Pethick’s right to a speedy trial, an assessment of that

right normally requires the consideration of the four-factor test set out in, inter

alia, United States v. Abdush-Shakur, 465 F.3d 458, 464 (10th Cir. 2006) (citing

                                          -7-
Barker v. Wingo, 407 U.S. 514, 530 (1972)). We agree with the district court that

the speedy trial clock begins to run only from the date of the filing of an

information, indictment, or complaint, not from the issuance of a “ticket” or

“notice violation” as Mr. Pethick initially received in this case. Thus,

Mr. Pethick cannot construct a speedy trial violation out of the fifty-three days

between the issuance of the ticket to him and the filing of the information against

him.

       We accordingly reject these arguments, for substantially the reasons stated

in the district court’s thorough opinion dated July 15, 2009, as supplemented by

our remarks above.



       II. Brady Violation Claim:

       Mr. Pethick argues that the government’s destruction of the videotape

evidence also violates Brady v. Maryland, 373 U.S. 83 (1963). “The

prosecution’s suppression of evidence favorable to the accused . . . violates due

process where the evidence is material either to guilt or to punishment.” United

States v. Williams, 576 F.3d 1149, 1163 (10th Cir. 2009). “To establish a Brady

violation, the defendant must prove that the prosecution suppressed evidence, the

evidence was favorable to the defense and the evidence was material.” Id.

Evidence is material for Brady purposes “only if there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding

                                          -8-
would have been different.” Id.; see also United States v. Velarde, 485 F.3d 553,

559 (10th Cir. 2007). A reasonable probability, in turn, is a “probability

sufficient to undermine confidence in the outcome.” Williams, 576 F.3d at 1163.

      We agree with the district court that Mr. Pethick has failed to sustain his

burden to establish by a preponderance of the evidence that the videotape is either

favorable to him or material to the verdict. As the court explicitly noted:

             Although it is reasonable to assume, given the placement of
      the cameras, that the videotape would have captured [Mr.Pethick]
      driving, stopping, and exiting the vehicle, it is undisputed that the
      cameras would not have captured [Mr. Pethick’s] performance of the
      field sobriety tests. Moreover, [Mr. Pethick] was not stopped
      because he was driving erratically but rather simply because it was
      standard procedure to stop all cars attempting to enter the base
      through gate 20. I, therefore, find it difficult to discern how video of
      [Mr. Pethick] driving through the gate or exiting his vehicle would
      be exculpatory when the totality of the other circumstances observed
      by officers clearly established probable cause.

Order at 7-8 n.10, R. Vol. 2 at 505-06 n.10. Thus, we perceive no Brady

violation.



      III. Probable Cause:

      Finally, Mr. Pethick argues that the district court erred in finding that the

law enforcement personnel at Fort Carson’s Gate 20 had sufficient probable cause

to believe that he was driving under the influence. “[T]he ultimate determination

of . . . probable cause is a mixed question of law and fact that we review de

novo.” United States v. Hauk, 412 F.3d 1179, 1185 (10th Cir. 2005). While

                                         -9-
Mr. Pethick devotes many pages of his briefs to technical aspects of field sobriety

tests and the conduct of such tests, the crux of his argument is that they were

simply administered incorrectly and not in precise conformity with certain

manuals. He argues that they are, therefore, insufficient to establish probable

cause to arrest him and perform further blood testing. 5 We reject this argument,

for substantially the reasons set forth in the district court’s decision.



                                   CONCLUSION

      In sum, we agree with the district court’s decision and analysis in affirming

the conviction and sentence imposed by the magistrate judge. Accordingly, for




      5
       The district court described Mr. Pethick’s more particular complaints as
follows:

      (1) that the MP’s instructions as to how to perform the walk-and-turn
      test did not track the standard instruction for the test set forth by the
      National Highway Traffic Safety Administration (“NHTSA”),
      because, inter alia, the MP did not instruct [Mr. Pethick] to take the
      NHTSA-proposed number and type of footsteps in performing the
      turn and did not advise him of the NHTSA-proposed allowable space
      between one’s heel and toe or between one’s arms and sides while
      walking; (2) that the MP did not administer two NHTSA-
      recommended sobriety tests, specifically, the one-leg stand and the
      horizontal gaze nystagmus tests; (3) that the nose-touch test was not
      in keeping with Fort Carson’s standard practices; and (4) that the MP
      only partially completed an alcohol incident report form, which set
      forth a standardized formula to analyze probable cause.

Order at 5, R. Vol. 2 at 503.

                                          -10-
substantially the reasons stated therein, the decision of the district court is

AFFIRMED.

                                                 ENTERED FOR THE COURT


                                                 Stephen H. Anderson
                                                 Circuit Judge




                                          -11-
