Opinion
CR-22-02119-TUC-RM-BGM
08-07-2023
United State of America, Plaintiff, v. 1. JaQwan Lamar Shelton, and 2. Davonta Lewis Hunt, Defendants.
REPORT AND RECOMMENDATION
Honorable Bruce G. Macdonald United States Magistrate Judge
Pending before the Court is Defendant JaQwan Lamar Shelton and Co-defendant Davonta Lewis Hunt's (“Defendants”) Motion to Suppress Stop Based on Lack of Reasonable Suspicion to Conduct Investigatory Stop (Doc. 39). The Government filed a response (Doc. 41), and Defendants have replied. (Doc. 42.) Pursuant to LRCrim 5.1, this matter came before Magistrate Judge Macdonald for a hearing and a report and recommendation. (Doc. 10). On July 19, 2023, an evidentiary hearing was held by Magistrate Judge Macdonald and the matter taken under advisement. (Doc. 46). The Magistrate Judge recommends that the District Court, after independent review, deny Defendant's Motion. (Doc. 39).
I. FINDINGS OF FACT
Agent Robert Guzman has been a United States Border Patrol Agent and canine handler for approximately 17 years. (Doc. 51 at 5). For all 17 years, Agent Guzman has been assigned to the Willcox area, which extends east to west from the New Mexico state line to the Pima County line, and north to south from Safford, Arizona, to Tombstone, Arizona. Id. at 6. Highway 90 is a route connecting to Interstate 10 leading from the Mexico/Arizona border, traversed by over 1,000 people daily. Id. at 7, 19, 22-24; Exhibit D1. It breaks from State Route 80 near Bisbee, and it connects the cities of Sierra Vista and Fort Huachuca to Tucson. Id. at 21-23; Exhibit D1. In Agent Guzman's experience, Highway 90 has become a common route for alien smuggling. Id. at 8-9. For approximately a year prior to and including September 2022, Highway 90's checkpoint was non-operational due to lack of manpower. Id. at 8, 53. Because of this, while the Highway 90 checkpoint was non-operational, Border Patrol encountered a high volume of vehicles engaged in alien smuggling near that area during shift change between 6:20 and 7:00 am. Id. at 8-9, 14. Additionally, in Agent Guzman's experience, smuggling organizations commonly use rental vehicles for alien smuggling-after an arrest, BPAs seize the vehicles involved, and personally-owned vehicles are forfeited, whereas rental vehicles are returned to the rental company. Id. at 9.
On September 1, 2022, via the service radio in his truck, Agent Guzman received intelligence that a rental agency out of Phoenix had reported to Border Patrol that a yellow H2 Hummer, with a given license plate number, was “possibly loaded with illegal aliens” and was headed south towards the Mexico border-the vehicle, now headed northbound, had just passed the Highway 90 checkpoint. Id. at 11-12, 28. Agent Guzman testified that the intelligence he received also revealed that that Border Patrol had previously seized several of the rental agency's vehicles-that had been headed in the same direction-for alien smuggling. Id. at 12, 51. Around 6:25 a.m., Agent Guzman, who was headed southbound on Highway 90, spotted the yellow Hummer heading northbound and turned his car around and began to follow it. Id. at 12. Once he got behind the Hummer, he verified that the license plate matched the one reported in the service radio intel. Id. He also ran a registration check and found that the vehicle was registered to America's Motors, a rental car company. Id. at 12, 29-30. Agent Guzman observed two young black men in the car- the driver and the passenger. Id. at 30, 44. He testified that as he continued to follow the vehicle, the Hummer's driver began “throwing his hands up in the air frantically, like in a panic,” which Agent Guzman associated with “him starting to get nervous with my presence.” Id. at 13. Based on this information, the intel put over the radio, his knowledge of alien smuggling trends in the area, and the fact that the Hummer was a rental car out of Phoenix, Agent Guzman decided to stop the Hummer and turned on his lights and sirens at approximately 6:29 a.m. Id. at 13, 56.
After Agent Guzman turned on his lights and sirens, the Hummer pulled over on the Interstate 10 ramp. Id. at 13. However, as Agent Guzman started to get out of his patrol car, the driver then quickly accelerated the Hummer and headed west on Interstate 10. Id. at 14. Agent Guzman returned to the patrol car and followed the Hummer, which exited Interstate 10 southbound on Empirita Road at mile marker 292, eventually turning onto a dirt road and continuing south. Id. at 15. Agent Guzman then witnessed the Hummer come to a stop, whereupon both rear doors opened and several men in camouflage exited the vehicle and ran eastbound into the desert. Id. at 15-16. After the men exited the Hummer, the driver again accelerated the vehicle, which drove through a fence before it headed back onto Empirita Road toward Interstate 10. Id. Agent Guzman continued to follow the Hummer and observed the driver talking into a cell phone, seeming “pretty frantic about whatever the conversation was about, throwing his right hand . . . up in the air and still driving at a high rate of speed.” Id. at 17. The Hummer eventually pulled over and stopped near mile marker 287, and the driver “put his hands outside the door and partial head outside the window, which [Agent Guzman] took as surrendering.” Id. at 18. Agent Guzman approached the vehicle to conduct a felony stop and observed only the driver- identified as JaQwan Shelton-and front-seat passenger-identified as Davonta Hunt. Id. The other BPA responding to the pursuit searched the desert area where the men in camouflage exited the Hummer, locating and apprehending four individuals. Id. at 16, see also Doc. 41 at 3. An immigration inspection revealed that all four individuals were Mexican citizens present illegally in the United States, and one these individuals was held as a material witness. (Docs. 16, 18, 20, and 23 at 1; Doc. 41 at 3.)
A. Procedural History
Based on the evidence obtained as a result of the stop, Defendants were charged with one count of Conspiracy to Transport Illegal Aliens for Profit in violation of 8 U.S.C. §§ 1324(a)(1)(A)(v)(I), 1324(a)(1)(A)(ii), and 1324(a)(1)(B)(i); and one count of Transportation of Illegal Aliens for Profit in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324(a)(1)(B)(i), and 18 U.S.C. § 2. (Doc. 21.) On September 22, 2022, an Order was issued granting stipulation and releasing the material witness. (Doc. 20.) A Tucson Federal Grand Jury indicted Defendants on September 28, 2022, for Conspiracy to Transport Illegal Aliens for Profit and Transportation of Illegal Aliens for Profit. (Doc. 23.)
Defendants filed a Motion to Suppress on June 5, 2023. (Doc. 39.) Defendants move to suppress all evidence obtained as a result of the September 1, 2022, stop by Agent Guzman. (Doc. 39 at 1.) Defendant alleges that Agent Guzman's stop of Defendants was illegal due to a lack of reasonable suspicion. In contrast, the Government contends that reasonable suspicion supported the stop; therefore, the stop was lawful. (Doc. 41 at 1.)
II. ANALYSIS
A. DISCUSSION
Defendants move to suppress any and all evidence seized or obtained from Defendants, and any statements taken or obtained from Defendants, because the same were obtained as the result of an unlawful stop. (Doc. 31 at 1).
1. Legal Standard
The Fourth Amendment protects individuals against unreasonable governmental searches and seizures-this protection extends to “brief investigatory stops of persons or vehicles that fall short of traditional arrest.” United States v. Arvizu, 534 U.S. 266, 273 (2002) (citing Terry v. Ohio, 392 U.S. 1, 9 (1968); United States v. Cortez, U.S. 411, 417 (1981). Consistent with the Fourth Amendment, to perform “brief investigatory stops,” officers, including Border Patrol Agents (“BPAs”), must have “a reasonable suspicion to believe that criminal activity may be afoot.” United States v. Raygoza-Garcia, 902 F.3d 994, 999 (9th Cir., 2018).
Reasonable suspicion exists only when an officer is aware of “specific, articulable facts which, together with rational inferences from those facts, form a basis for suspecting that a particular person is engaged in criminal conduct.” United States v. Thomas, 211 F.3d 1186, 1189 (9th Cir. 2000) (internal quotations and citation omitted). The level of suspicion required to meet the standard for reasonable suspicion is not high-less than the level required for probable cause. United States v. Valdes-Vega, 738 F.3d 1074, 1078 (9th Cir. 2000); United States v. Sokolow, 490 U.S. 1, 8 (1989). Nonetheless, an investigatory stop must have a basis in objective facts, not an officer's “mere” hunches or subjective impressions. Valdes-Vega, 738 F.3d at 1078; United States v. Hernandez-Alvarado, 891 F.2d 1414, 1416 (9th Cir. 1985).
To determine the existence of reasonable suspicion, a court must consider the totality of the circumstances involved at the time of the stop to establish whether an officer had a “particularized and objective basis” for suspecting illegal conduct. Arvizu, 534 U.S. at 273 (quoting Cortez, 499 U.S. at 471-18). The court's analysis of the totality of the circumstances precludes a “divide-and-conquer” approach, as conduct that seems innocuous in isolation may be appropriate for consideration when viewed in the totality of the circumstances. Id. at 274. The court may view some factors as more probative than others, but it cannot decline to give weight to factors which may have an innocent explanation, because individual instances of innocuous conduct, when viewed collectively, may warrant additional exploration. Arvizu, 534 U.S. at 272; Valdes-Vega, 738 F.3d at 1079. Further, “[a] determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct.” Arvizu, 534 U.S. at 277.
Further, the court must measure specific, articulable facts that form the basis of a reasonable suspicion against an objective reasonableness standard rather than a given officer's subjective impressions. Nicacio v. U.S. I.N.S., 797 F.2d 700, 702-03 (9th Cir. 1985), overruled in part on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1045 (9th Cir. 1999). A BPA is permitted to “assess the facts in light of his experience in detecting illegal entry and smuggling”; however, the inferences an officer draws from said facts must be objectively reasonable. United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975); United States v. Montero Camargo, 208 F.3d 1122, 1131 (9th Cir.) If a stop violates the Fourth Amendment, the exclusionary rule prohibits evidence obtained during the stop from being used in a criminal proceeding against the victim of the unlawful stop. United States v. Calandra, 414 U.S. 338, 347 (1974); see also Mapp v. Ohio, 367 U.S. 643, 655 (1961) (holding that all evidence acquired during unconstitutional searches and seizures is inadmissible in state court). This rule also encompasses “the fruits of illegally seized evidence.” Mapp, 367 U.S. at 655.
2. Totality of the Circumstances
The parties are in dispute regarding whether, under the Totality of the Circumstances, Agent Guzman had reasonable suspicion to stop Defendants' vehicle prior to its flight from the Interstate 10 ramp. Defendants claim that “the facts and conditions necessary to find that the stop was lawful are simply absent from the record.” (Doc. 39 at 5). The Government maintains that the defense is asking the Court to inappropriately engage in a “divide-and-conquer analysis” that does not “credit the training, experience, and viewpoint of the agent that observed them.” (Doc. 41 at 7).
The Government states that prior to deciding to initiate the stop on the Interstate 10 ramp, Agent Guzman had several reasons for reasonably suspecting the Hummer was involved in criminal activity: (1) BPAs had received intelligence reports about the rental car company's suspicions that the Hummer may have been rented for alien smuggling, which referenced the Hummer by its color, location, and license plate; (2) the Hummer was a rental vehicle, and in Agent Guzman's experience, it is common for smuggling organizations to use rental vehicles to avoid forfeiture of their own vehicles; (3) the Hummer was traveling at the time of the Benson area shift change while the Highway 90 checkpoint was still non-operational-and Agent Guzman knew from experience that smuggling organizations commonly exploited this information to avoid Border Patrol; and (4) the driver of the Hummer began frantically throwing his hands in the air after Agent Guzman began to follow the vehicle. (Doc. 41 at 6, 7). Each reason is considered below.
a. Characteristics of the Area; Previous Smuggling in the Area; and Usual Patterns of Traffic and Time of Day
At the time of the initial stop on the Interstate 10 ramp, Defendants were traveling north on Highway 90, which, in Agent Guzman's experience, had become a common route for alien smuggling. Agent Guzman also noticed increased smuggling activity along that route, especially during the time of the Benson area shift change (6:20-7:00 a.m.), because the Highway 90 checkpoint was non-operational, smugglers used it to their advantage.
Law enforcement's awareness that a particular route or location is predominately used for illegal purposes, e.g., alien smuggling, supports a finding of reasonable suspicion. United States v. Manzo-Jurado, 457 F.3d 928, 936 (9th Cir. 2006). However, vehicles traveling on a public highway are not inherently suspicious. See United States v. Rodriguez, 976 F.2d 592, 595 (9th Cir. 1992). Further, reasonable suspicion does not exist when the underlying factors depict a large category of presumably innocent travelers. United States v. Sigmond-Ballesteros, 285 F.3d 117, 1127 (9th Cir. 2002). Specific to this District, courts have indicated that because of Highway 90's high level of traffic, “a vehicle travelling on this road cannot be said to be in an area known for alien smuggling.” United States v. Serna, No. CR 22-01651-001-TUC RM (DTF), 2023 WL 1929555, at *4 (D. Ariz. Feb. 10, 2023); see also United States v. Ortiz-Guadalajara, No. CR 16-01654-TUC-RM (JR), 2017 WL 1906950, at *5 (D. Ariz. Apr. 14, 2017) (characteristics of the area “merit little weight the calculus of reasonable suspicion” in the case of a vehicle stop on Highway 90). Thus, the vehicle's location on Highway 90-even considering the closed Highway 90 checkpoint and increased smuggling in the area-would not have been particular to the Hummer and is not especially probative in an assessment of reasonable suspicion.
Similarly, as Defendants point out, the fact that the Hummer was traveling on Highway 90 in this area between 6:20 and 7:00 am would also have been true for a significant number of presumably innocent drivers on their morning commute. Thus, the time of day during which Agent Guzman spotted the Hummer also does not carry much weight in a reasonable suspicion analysis.
b. Characteristics of the Vehicle
The yellow Hummer was a rental vehicle, and Agent Guzman was aware of this information prior to initiating the stop on the Interstate 10 ramp. Further, Agent Guzman, through training and experience, knew that it was common for smuggling organizations to use rental vehicles to avoid forfeiture after seizure.
Other courts in this Circuit and District have not found that the use of a rental vehicle necessarily weighs in favor of a finding of reasonable suspicion. For example, in United States v. Rodriguez, the court ruled that agents' seizure of a defendant was illegal, reasoning that defendant's use of a rental car was a factor that “describe[d] too many individuals to create reasonable suspicion.” 976 F.2d at 596-96; see also United States v. Johnson, No. CR-21-00852-001-TUC-SHR (EJM), 2022 WL 1164886, at *12 (“[there are no] specific, objective facts to support a reasonable suspicion that this particular individual, as opposed to any other individual driving a newer, clean rental car on the highway . . . was engaged in criminal activity.”); United States v. Henley, No. CR 13-01249-TUC-CKJ(HCE), 2013 WL 6628297, at * 11 (D. Ariz. Dec. 17, 2013) (finding that the fact that Defendant was driving a rental car during shift change did not substantiate BPAs' suspicion of criminal activity. The court “[c]onsidered that personal vehicles are also used to smuggle aliens, by [the BPAs'] reasoning, arguably any vehicle seen while a shift change is occurring would give rise to reasonable suspicion to stop the vehicle.”). Defendants also note that many law-abiding citizens use rental cars, for tourist attractions, many to which Highway 90 provides access. As the Government notes, it may be common for smugglers to use rental cars to avoid forfeiture, it is likely that most vehicles involved in alien smuggling are not rented-and vice versa. See Henley, 2013 WL 6628297, at *5 (“While the [Border Patrol] intelligence reports referenced the use of rental vehicles [in alien smuggling] one-third of the time, the majority of the time, the vehicles were not rented.”).
E.g., Bisbee, Ft. Huachuca, Tombstone (via Highway 82), Kartchner Caverns State Park, etc. (Doc. 39 at 9).
Considering the foregoing, the fact that the vehicle in question was a rental car does not provide significant weight toward a finding of reasonable suspicion.
c. Behavior of the Driver
When Agent Guzman initially started following the Hummer, he noticed the driver begin to wave his hands “frantically,” which the Agent found suspicious.
Defendants argue Agent Guzman provided no indication that the driver waved his hands in the air in response to the presence of a law enforcement vehicle, and there is no way to know for certain if the driver knew Agent Guzman was behind him. Further, there are several reasons the driver could have waved his hands in the air that are unrelated to spotting a law enforcement vehicle-an emotional conversation, movement to music, etc. Agent Guzman specified no other driver behavior arousing his suspicion prior to initiating the stop on the Interstate 10 ramp. Therefore, the behavior of the driver deserves limited weight in this analysis.
d. The Alert
Agent Guzman received intel via service radio regarding the rental car company's suspicions that the Hummer may have been rented for alien smuggling, which referenced the Hummer by its color, location, and license plate.
Courts in the Ninth Circuit have held that a tip may only generate reasonable suspicion, if, under the “totality-of-the-circumstances,” it possesses two features. United States v. Rowland, 464 F.3d 899, 907 (9th Cir. 2006) (citation omitted). First, the tip must exhibit sufficient indicia of reliability, and second, it must provide information on potential illegal activity serious enough to justify a stop. United States v. Edwards, 761 F.3d 977, 983 (9th Cir. 2014). The reliability of a tip is demonstrated by: (1) whether the tipster is known or anonymous; (2) whether the tipster makes known the basis of their knowledge; (3) whether the tipster exhibits insider knowledge by providing detailed predictive information; (4) whether the tipster calls 911, rather than a non-emergency line; and (5) whether the tipster relays fresh, personal eyewitness knowledge. United States v. Vandergroen, 964 F.3d 876, 879-80 (9th Cir. 2020).
Here, the rental car company caller's tip lacks several of the above factors, weighing against the tip's reliability. First, although it was known that the tip came from the rental car company, there is no indication that the caller provided a name. Second, the rental car company's tip indicated the location of the Hummer, there was no other predictive information that would demonstrate insider knowledge of potential criminal activity. Third, rental car company caller appears to have contacted Border Patrol directly, in a nonemergency capacity, rather than 911. Finally, the caller did not relay personal eyewitness knowledge of a crime, merely that the Hummer may be engaged in alien smuggling, based on multiple recent rental car seizures.
Additionally, as the above implies, the tip did not provide information on potential illegal activity serious enough to justify a stop. The tip relayed only the suspicion that the Hummer was being rented for alien smuggling. Although the suspicion later proved correct, it was still mere speculation. There is no indication that the caller (or anyone at the rental company) witnessed the Defendants engage in behavior or discussion that would suggest potential criminal activity-renting a car is not in and of itself illegal. Thus, the rental car company caller's tip does not lend meaningful weight to a reasonable suspicion analysis.
e. Officer Experience and the Totality of the Circumstances
As the Government argues, the Supreme Court stipulates that lower courts should not engage in a “divide-and-conquer” analysis; nor are officers required to rule out the possibility of innocent conduct before conducting a vehicle stop. However, here, most of the facts the Government cites as reasons supporting Agent Guzman's reasonable suspicion are based on generalized profiles and are not reliable indicators of criminal activity. Further, the rental car company tip, which the Government states is an additional basis for reasonable suspicion, was questionably reliable and did not actually include a report of criminal activity.
Thus, looking at the circumstances in total, Agent Guzman did not have a particularized and objective basis supporting reasonable suspicion to conduct the stop on the Interstate 10 ramp.
3. Time of Seizure and Reasonable Suspicion
The dispositive issue in this case, however, is whether Defendants were seized when Agent Guzman turned on his lights and sirens and Defendants pulled over on the Interstate 10 ramp. Defendants argue that they stopped on the shoulder of Interstate 10 in response to Agent Guzman's show of authority-turning on his lights and sirens-and were thus seized. (Doc. 42 at 3). Conversely, the Government contends that Defendants were not seized because although they pulled over on the Interstate 10 ramp after Agent Guzman turned on his lights and sirens, they fled shortly thereafter, demonstrating a lack of submission to authority. (Doc. 41 at 4). Instead, the Government asserts that Defendants were not seized until after a chase ensued and Defendant, in a show of submission to authority, stopped the Hummer and placed his head and hands out of the vehicle for Agent Guzman to see. Id. at 4-5.
Under the Fourth Amendment, an individual's “seizure” occurs only when physical force or show of authority results in restrained freedom of movement. See United States v. Smith, 633 F.3d 889 (9th Cir. 2011). In the absence of physical force, an individual is not “seized” unless an officer's show of authority is accompanied by “submission to the assertion of authority” Smith 633 F.3d at 893 (quoting California v. Hodari D., 499 U.S. 621, 626 (1991) (emphasis in original)). Further, without “actual submission,” there can be only “attempted seizure” at best. Brendlin v. California, 551 U.S. 249, 254 (2007).
Furthermore, the notion of an ongoing seizure-where once an individual is seized, the seizure is deemed to continue even after the individual takes flight-is contrary to the Supreme Court's finding in Hodari D. See 499 U.S. at 625 (“To say that an arrest is effected by the slightest [show of authority], despite the arrestee's escape, is not to say that for Fourth Amendment purposes there is a continuing arrest during the period of fugitivity . . . A seizure is a single act, not a continuous fact.”)
Here, although Defendants yielded onto the Interstate 10 ramp after Agent Guzman turned on his lights and sirens, the fact that they accelerated off the ramp and fled after Agent Guzman pulled up behind them and got out of his vehicle demonstrates that Defendants did not submit to authority. Thus, no seizure occurred at that time. The Government is correct in its assertion that Defendants' surrender-and resultant seizure- did not occur until after Defendants: “(1) engaged agents in a chase; (2) paused to allow the undocumented noncitizens to bail out on a dirt road; (3) drove into the desert; (4) drove through a fence; and (5) doubled back to the freeway,” after which the driver stopped the Hummer near mile marker 287 and placed his hands outside the car for Agent Guzman to see. (Doc. 41 at 5, 8.)
Because Defendants were not seized before fleeing from the Interstate 10 ramp, their flight created a reasonable suspicion of involvement in criminal activity, making the postchase seizure at mile marker 287 lawful. Smith, 633 F.3d at 892 (Even if Defendant was unlawfully seized during his initial encounter with an officer, his “subsequent headlong flight” ... “was an intervening event that gave rise to a new finding of reasonable suspicion.”); Id. at 894 (“Headlong flight . is the consummate act of evasion . it is suggestive of [wrongdoing].”); Id. at 893 (stating that although Defendant was not seized initially, he was “indisputably” seized later, after he fled and the pursuing officer apprehended him. Defendant's flight provided the officer with reasonable suspicion to initiate a seizure). Further, the initial attempted stop on the Interstate 10 ramp could not have violated Defendants' Fourth Amendment rights because Defendants were not seized for the purposes of the Fourth Amendment until after their flight from the ramp. Id. at 892, 894 (upholding the district court's finding that even though the officer did not have reasonable suspicion to initiate a stop before Defendant fled, Defendant's “Fourth Amendment rights were not violated by the attempted stop because [Defendant] was not seized for Fourth Amendment purposes until after he fled.”).
Defendants cite United States v. Brown to argue that a defendant's flight after an officer's show of authority does not lend weight to a finding of reasonable suspicion. (Doc. 42 at 5); 925 F.3d 1150, 1152-53, 1157. However, this case is distinct from Brown in that here, after Agent Guzman turned on his lights and sirens, Defendants pulled their vehicle over briefly prior to their flight, while in Brown, after officers turned on their lights and sirens, the defendant engaged in no pause of any kind prior to fleeing. Id. at 1152-53.
III. CONCLUSION
Given the totality of the circumstances, Agent Guzman lacked reasonable suspicion required to effectuate a stop-prior to-Defendants' flight from the Interstate 10 ramp. However, Defendants were not seized before they fled from the ramp. It was Defendants' flight-and Agent Guzman's subsequent observation of the vehicle pull over and several men dressed in camouflage exit Defendants' vehicle and run into the desert-that created a reasonable suspicion that Defendants were involved in criminal activity, if not probable cause, therefore, Agent Guzman did not violate Defendants' Fourth Amendment rights in effectuating a stop thereafter. Therefore, denial of Defendants' Motion to Suppress is appropriate.
IV. RECOMMENDATION
Based on the foregoing, the Court recommends that the District Court DENY Defendants' Motion to Suppress (Doc. 39).
Pursuant to 28 U.S.C. § 636(b) and Rule 59(b)(2) of the Federal Rule of Criminal Procedures, any party may serve and file written objections within 14 days of being served with a copy of this Report and Recommendation. No reply brief shall be filed on objections unless the District Court grants leave. Any objections to this action should be filed under case number: CR-22-02119-TUC-RM.
Failure to timely file objections to any factual or legal determination of the Magistrate Judge in accordance with Fed. R. Crim. P. 59 may result in waiver of the right of review.