16-2596
United States v. Stegemann

                    UNITED STATES COURT OF APPEALS
                        FOR THE SECOND CIRCUIT

                             SUMMARY ORDER
RULINGS  BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

     At a stated term of the United States Court of Appeals for
the Second Circuit, held at the Thurgood Marshall United States
Courthouse, 40 Foley Square, in the City of New York, on the
7th day of July, two thousand seventeen.

PRESENT: DENNIS JACOBS,
         PIERRE N. LEVAL,
         REENA RAGGI,
              Circuit Judges.

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UNITED STATES OF AMERICA,
         Appellee,

             -v.-                                                  16-2596

JOSHUA G. STEGEMANN,
         Defendant-Appellant.

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FOR APPELLANT:                                 JAMES P. EGAN, Assistant
                                               Federal Public Defender, for
                                               Lisa A. Peebles, Federal
                                               Public Defender, Syracuse,
                                               NY.



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FOR APPELLEE:                      FINNUALA K. TESSIER (Kenneth
                                   A. Blanco, Trevor N.
                                   McFadden, on the brief),
                                   Attorney, United States
                                   Department of Justice,
                                   Washington, D.C.

                                   Steven Clymer (on the brief),
                                   for Richard S. Hartunian,
                                   United States Attorney for
                                   the Northern District of New
                                   York, Syracuse, NY.

     Appeal from a judgment of the United States District Court
for the Northern District of New York (Sharpe, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
DECREED that the judgment of conviction is AFFIRMED and the
order of forfeiture is AFFIRMED in part, REVERSED in part, and
VACATED and REMANDED in part.

     Joshua Stegemann was convicted after a jury trial of
various drug and firearm-related offenses. The District Court
for the Northern District of New York (Sharpe, J.) sentenced
him principally to thirty years’ imprisonment and ordered the
forfeiture of money, firearms, ammunition, and a vehicle.
Stegemann appeals his conviction based on the failure to
suppress evidence allegedly obtained in violation of his
statutory and constitutional rights, and he appeals the
forfeiture of the money and vehicle based on a lack of connection
to his crimes. We assume the parties’ familiarity with the
underlying facts, the procedural history, and the issues
presented for review.

     In 2013, the Berkshire County (Massachusetts) Drug Task
Force obtained authorization from a Berkshire County judge to
wiretap eight cell phones belonging to Stegemann, who lived in
nearby Rensselaer County, New York and was believed to be
supplying drugs to individuals in Berkshire County. The
Berkshire County investigators also reached out to their
counterparts in Rensselaer County (who coordinated with the New


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York State Air National Guard) to conduct aerial surveillance
of Stegemann on five separate occasions in March and April 2013.

     The wiretaps on Stegemann’s phones captured several
conversations regarding drug dealing. Most notably, on April
15, 2013, Stegemann discussed selling oxycodone pills to an
individual named Robert Turner, who testified at trial that he
purchased 52 oxycodone pills from Stegemann on that date. This
transaction (and Stegemann’s apparent retrieval of the pills
from his backyard) was captured on video by aerial surveillance.

     Stegemann’s home at 138 Losty Road in Stephentown, New York
was on a one-acre rectangular lot in the northwest corner of
a much larger plot of land owned by his grandparents, Francis
and Audrey Foody. No fence or other physical barrier separated
the properties; Stegemann’s yard merged with the Foody
property, which was essentially an open field bounded by roads
and woods.

     On April 29, 2013, Rensselaer County investigators
obtained a warrant to search “all of the property located at
138 Losty Road” and “any other areas that [Stegemann] may have
custody or control of.” App’x at 556. When law enforcement
officers executed the warrant on April 30, Stegemann fled and
was immediately apprehended several hundred feet away on the
Foody property.

     Officers seized the following from Stegemann’s house: a
loaded .20-gauge shotgun; shotgun shells; a video security
system (with footage of Stegemann accessing various places on
and adjoining his property where guns, drugs, and cash were
found); digital scales; rubber gloves; “Muscle Milk”
containers; eight cell phones; and approximately $16,000 cash
in white envelopes marked with the number “5.”

     Other locations on Stegemann’s property yielded: over 23
grams of cocaine; nearly 3 grams of heroin; over 7 grams of
oxycodone; a loaded revolver; ammunition; and over $280,000 in
white envelopes marked with the number “5.”1


1
  The drugs were packaged in rubber gloves like the ones found
in Stegemann’s house. The envelopes of cash were stored in
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     Officers also searched the Foody property near the path of
Stegemann’s flight. A police dog alerted officers to a rock
pile on the eastern edge of the property, where they discovered
over 580 grams of cocaine, over 29 grams of heroin, and over
78 grams of oxycodone. The dog also alerted officers to a
second rock pile on the eastern border, where they discovered
a loaded handgun and ammunition.

     Based on phone calls recorded at Rensselaer County Jail
between Stegemann and his mother and sister, officers obtained
a warrant to search a safe located in the sister’s attic, where
they discovered approximately $160,000 in envelopes marked with
the number “5.” No additional evidence was found during a
search pursuant to a warrant of areas adjoining 138 Losty Road.

     Stegemann was convicted of possession with intent to
distribute cocaine, heroin, and oxycodone, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(B), and (b)(1)(C); possession of
firearms in furtherance of a drug trafficking offense, in
violation of 18 U.S.C. § 924(c)(1)(A); and possession of
firearms and ammunition by a convicted felon, in violation of
18 U.S.C. § 922(g)(1).

     Stegemann argues that his conviction should be set aside
because the district court failed to suppress: (1) evidence
gathered through aerial surveillance, which was conducted
without a warrant; (2) evidence obtained and derived from the
wiretaps, which he claims violated 18 U.S.C. § 2518; and
(3) evidence seized from the Foody property, which he asserts
was within the curtilage of his home but beyond the scope of
the search warrant. Stegemann also argues that the money and
vehicle seized by law enforcement following his arrest were
improperly forfeited.

     1. The district court found that Stegemann’s challenge to
the aerial surveillance was “waived as insufficiently raised.”
United States v. Stegemann, 40 F. Supp. 3d 249, 259 n.8 (N.D.N.Y.
2014). We review that decision for abuse of discretion or clear
error. See United States v. Crowley, 236 F.3d 104, 110 (2d Cir.
2000). Buried in Stegemann’s voluminous pretrial motions were

“Muscle Milk” containers, which were also found in Stegemann’s
house.
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two conclusory sentences alleging that aerial footage had to
be suppressed because the surveillance violated his
(unspecified) rights. In contravention of the court’s local
rules,2 the motion in which these sentences appeared did not
describe the aerial surveillance or cite any supporting legal
authority. The district court acted within its discretion by
treating this perfunctory, undeveloped argument as forfeited.
See Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir.
2001) (“A district court has broad discretion to determine
whether to overlook a party’s failure to comply with local court
rules.”); cf. United States v. Botti, 711 F.3d 299, 313 (2d Cir.
2013) (“[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are
deemed waived.” (internal quotation marks omitted)). Because
Stegemann has not shown good cause for his failure to adequately
raise his aerial surveillance argument in the district court,
we do not address it. See United States v. Yousef, 327 F.3d
56, 125 (2d Cir. 2003).

     2. Stegemann argues that the wiretap warrants failed to
satisfy various requirements of 18 U.S.C. § 2518. Even if true,
any error regarding the admission of wiretap evidence was
harmless. See Kotteakos v. United States, 328 U.S. 750, 764-65
(1946) (holding that a non-constitutional error is harmless
where an appellate court has a fair assurance that the error
did not substantially affect the verdict).

     “[T]he strength of the government’s case is the most
critical factor in assessing whether error was harmless.”
United States v. Ramirez, 609 F.3d 495, 501 (2d Cir. 2010). The
non-wiretap evidence of Stegemann’s guilt was overwhelming.
With respect to drug trafficking, the evidence included: (1)
Turner’s testimony that he purchased oxycodone from Stegemann;
(2) aerial surveillance footage capturing that purchase; (3)

2
  See Local Rule of Criminal Procedure for the Northern District
of New York 12.1(a) (“The moving party must specifically
articulate the relief requested and must set forth a factual
basis which, if proven true, would entitle [him] to the
requested relief. . . . A separate memorandum of law is
unnecessary when the case law may be concisely cited (i.e.,
several paragraphs) in the body of the motion.”).
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the vast quantities of cocaine, heroin, and oxycodone stashed
in rubber gloves in locations around Stegemann’s property and
the adjoining Foody property; (4) the digital scales, rubber
gloves, and eight cell phones found in Stegemann’s home; (5)
the hundreds of thousands of dollars in cash found in similarly
marked envelopes in and around Stegemann’s home and in his
sister’s safe; and (6) footage from Stegemann’s home security
cameras and from aerial surveillance showing Stegemann
accessing locations where drugs and cash were stored.

     With respect to Stegemann’s conviction for possessing
firearms in furtherance of drug trafficking and possessing
firearms and ammunition as a convicted felon, the evidence
included: (1) the loaded shotgun in Stegemann’s bedroom and two
other loaded guns outside of his house in areas he was seen
accessing; (2) the proximity of two of the guns to hidden drugs
and cash; (3) detection of one of the guns by a dog trained only
to detect drugs; (4) the illegal possession of the guns, one
of which was stolen; and (5) footage from his home security
cameras showing him accessing areas where guns were found within
minutes of accessing areas where cash and drugs were found. See
United States v. Snow, 462 F.3d 55, 62 n.6 (2d Cir. 2006) (noting
that a firearm’s connection with drug trafficking is evidenced
by “the type of drug activity that is being conducted,
accessibility of the firearm, the type of the weapon, whether
the weapon is stolen, the status of the possession (legitimate
or illegal), whether the gun is loaded, proximity to drugs or
drug profits, and the time and circumstances under which the
gun is found” (internal quotation marks omitted)).

     Any error affecting the wiretaps would not have required
suppression of the evidence seized during the search of 138
Losty Road (notwithstanding that the warrant application cited
the wiretapped calls). That is because probable cause to
search the property existed even without consideration of the
wiretapped calls. See United States v. Reilly, 76 F.3d 1271,
1282 n.2 (2d Cir. 1996) (“[A] reviewing court should excise the
tainted evidence and determine whether the remaining, untainted
evidence would provide a neutral magistrate with probable cause
to issue a warrant.” (internal quotation marks omitted)). In
addition to citing the wiretapped calls, the search warrant
application relied on: (1) interviews with confidential sources

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establishing that Stegemann was selling narcotics from 138
Losty Road; (2) aerial surveillance showing that on April 15,
2013, Stegemann retrieved something from a rock pile in his
backyard, drove to a spot on a nearby road, and engaged in a
hand-to-hand transaction with someone in another car;
(3) knowledge of Massachusetts police that Stegemann had been
involved in drug dealing for years; (4) Stegemann’s previous
arrest for narcotics and weapons charges; and (5) statements
by confidential informants that Stegemann had several stolen
vehicles on his property.

     3. Stegemann contends that the drugs, loaded handgun, and
ammunition seized from rock piles on the eastern edge of the
Foody property should have been suppressed because that area
was outside the scope of the search warrant but within the
curtilage of his home. The district court found that this area
constituted an open field, a determination that required
finding that the area was beyond the curtilage. See Oliver v.
United States, 466 U.S. 170, 180 (1984) (“[O]nly the curtilage,
not the neighboring open fields, warrants the Fourth Amendment
protections that attach to the home.”). “[W]e review the
district court’s findings underlying the scope of curtilage as
essentially factual ones, reversible only for clear error.”
Reilly, 76 F.3d at 1275 (internal quotation marks omitted).

     The district court’s curtilage finding was not clearly
erroneous. The issue is “whether the area in question is so
intimately tied to the home itself that it should be placed under
the home’s ‘umbrella’ of Fourth Amendment protection.” Id. at
1276 (internal quotation marks omitted). The rock piles do not
warrant curtilage protection because they were located on the
property of Stegemann’s grandparents, several hundred feet away
from his house, and had no apparent use other than to hide his
drugs, loaded handgun, and ammunition. See United States v.
Dunn, 480 U.S. 294, 301 (1987) (listing factors to consider when
demarcating curtilage); Oliver, 466 U.S. at 178 (“[A]n
individual may not legitimately demand privacy for activities
conducted out of doors in fields, except in the area immediately
surrounding the home.” (emphasis added)).

     4. Stegemann argues, and the government concedes, that
the vehicle seized from his property and the roughly $456,000

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in cash found on his property and in his sister’s safe were not
connected to the crimes of which he was convicted. We therefore
reverse the forfeiture order with respect to these items.3

     Stegemann also argues that he should not have to forfeit
the $20,494.67 that was taken from his bank accounts. These
funds were seized as substitute assets to reduce a money
judgment in the amount of $93,545, a sum that represents the
value of the narcotics found during the search of Stegemann’s
property. The record does not reveal why the government
obtained a money judgment based on the value of the drugs seized,
particularly where the defendant was convicted of possession
with intent to distribute and no proceeds resulting from the
crime of conviction appear to have been attributed to him.
Because we cannot decide whether the bank accounts were
correctly forfeited as substitute assets pursuant to 21 U.S.C.
§ 853(p) without a clearer understanding of what they substitute
for, we vacate the money judgment and remand for further
development of the record.

     Accordingly, we hereby AFFIRM the judgment of conviction.
As to the forfeiture order, we AFFIRM with respect to the
firearms and ammunition; REVERSE with respect to the vehicle
and cash; and VACATE and REMAND with respect to the bank
accounts.

                             FOR THE COURT:
                             CATHERINE O’HAGAN WOLFE, CLERK




3
  Stegemann does not contest the forfeiture of the firearms and
ammunition. We therefore affirm the forfeiture order with
respect to these items.
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