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United States v. Lebeau

United States District Court, D. South Dakota, Western Division

July 2, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
GERALD WAYNE LEBEAU and NEIL THOMAS LEBEAU, Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION

KAREN E. SCHREIER, District Judge.

NATURE AND PROCEDURE OF CASE

Defendants, Gerald Wayne LeBeau and Neil Thomas LeBeau, are charged in a superseding indictment with conspiracy to distribute cocaine and conspiracy to distribute marihuana. Docket 56. Gerald is also charged with possession with intent to distribute cocaine and attempted witness tampering. Id. Gerald moves: to suppress evidence (Docket 30, Docket 142);[1] to suppress tape recordings of jail telephone calls (Docket 129); to suppress sealed envelopes and for a Franks hearing (Docket 140); and to suppress evidence taken from tribal land (Docket 157). Neil LeBeau moves: to suppress recorded telephone conversations (Docket 154); to join Gerald's motion to suppress evidence taken from tribal land (Docket 160); to suppress evidence from a 2012 traffic stop (Docket 161); and to join Gerald's motion to suppress sealed envelopes and for a Franks hearing (Docket 163). Those motions were referred to a United States magistrate judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

During the evidentiary hearing, which spanned three days, the magistrate judge heard testimony from fifteen witnesses. Forty-two exhibits were received into evidence. Magistrate Judge Daneta Wollmann issued a report and recommended denial of all the pending motions. Docket 248. Gerald objects to the report and recommendation. Docket 273. Gerald also requests that this court remand to reopen the suppression hearing or to supplement the record. Docket 274. Neil has not objected to the report and recommendation and the time for filing objections has passed. For the following reasons, the report and recommendation is adopted as supplemented by this opinion.

LEGAL STANDARD

Pursuant to 28 U.S.C. § 636(b)(1)(C), the court should make a de novo review "of those portions of the [magistrate judge's] report or specified proposed findings or recommendations to which objection is made." Accord United States v. Benitez, 244 F.Appx. 64, 66 (8th Cir. 2007) ("If a party objects to the magistrate judge's report and recommendation with respect to a dispositive matter, the district court judge must conduct a de novo review of the disputed portion of the magistrate judge's report and recommendation."). A motion to suppress evidence is a dispositive motion that requires de novo review. Fed. R. Crim. P. 59(b)(1), (3). De novo review in the context of reviewing a magistrate judge's report and recommendation does not require a new evidentiary hearing and only means a district court "give[s] fresh consideration to those issues to which specific objection has been made by a party." United States v. Raddatz, 447 U.S. 667, 674-75 (1980) (internal quotations and citations omitted). In conducting de novo review, this court may then "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994). The court has conducted a de novo review.

FACTS

On January 9, 2014, law enforcement arrested Lloyd Nickle on a warrant at Cadillac Jack's Casino in Deadwood, South Dakota. The following day, Special Agent Jeff YoungBlood executed a search warrant on a room registered to Nickle at Cadillac Jack's, Room 471. The casino's manager, Tim Atyeo, reported to Agent YoungBlood that a woman who had accompanied Nickle, identified at the time by hotel staff as Jessica Fields, was still in the hotel and had been seen with Gerald LeBeau.

Agent YoungBlood contacted Agent Dan Cooper to see if Agent Cooper was familiar with Gerald. Agent Cooper was familiar with Gerald based on Gerald's previous conviction of drug charges. Gerald was currently the subject of an open and active FBI investigation at the time. Agent Cooper was also aware of reports that Gerald possessed guns and had threatened to have a shootout with police rather than go back to prison. Consequently, Agent Cooper decided to go to Cadillac Jack's to assist Agent YoungBlood with the developing situation. Upon arrival at Cadillac Jack's, Agent Cooper recognized Gerald's car in the parking lot. Because Agent Cooper knew Gerald would recognize him, he waited in the parking lot while Agent YoungBlood, along with Agent Lyle Tolsma and Agent Shawn Sheridan, entered Cadillac Jack's.

The agents reviewed five hours of hotel video surveillance footage to determine where the woman associated with Nickle could be found. Hotel staff identified a woman seen with Gerald as the woman tied to Nickle. Based on the surveillance footage, law enforcement believed that woman was in Gerald's hotel room, Room 452. Law enforcement went to the fourth floor with hotel staff and observed a woman with Gerald whom hotel staff again identified as the person associated with Nickle.

Based on the reported association of the woman in Room 452 with Nickle, law enforcement requested that Atyeo have the front desk call Gerald's room and ask him to step outside to speak with Atyeo. Gerald opened his door, and the law enforcement agents patted him down, handcuffed him, and began to speak to him about the female in his room. At the same time, Marlin LeBeau approached the room and was also handcuffed and detained.

Agent Tolsma used an audio recorder to document the conversation in the hallway. Because of the poor quality of the recording and other background noise, it is difficult to hear the exchange between law enforcement and Gerald in the hallway. After a few minutes, Gerald called out to the woman in the room and law enforcement knocked on the door. The woman answered the door, and Agents Tolsma and Sheridan stepped into the hotel room.

Upon entering Room 452, Agent Tolsma spoke with the woman, who identified herself as Tyra Smith. While that conversation was occurring, Agent Sheridan performed a brief protective sweep of the hotel room. During the sweep, Agent Sheridan noticed white powder in plain view. Shortly thereafter, Agent YoungBlood escorted Smith to Room 471 to attempt to ascertain her identity and determine whether she was the woman known to hotel staff as Jessica Fields.

After Agent YoungBlood and Smith left, Agents Tolsma and Sheridan brought Gerald and Marlin into Room 452. The agents moved Gerald's handcuffs to his front so he could sit down. At that time, the agents obtained Gerald's consent to search Room 452. Gerald signed a permission to search form.[2] Although the audio recorder malfunctioned while Gerald was signing the form, Agent Tolsma replaced the recorder's battery and resumed the recording, at which time Gerald verbally confirmed his signature and his consent. Later, Gerald agreed that law enforcement could search his car located in the hotel parking lot. Law enforcement located a small amount of cocaine and syringes in Gerald's hotel room. Agent Cooper found four ounces of cocaine hidden in Gerald's car.

Upon discovery of the large amount of cocaine in Gerald's car, he was arrested and transported to the Pennington County Jail. Agent Sheridan advised Gerald of his Miranda rights and Gerald requested a lawyer. At that point, both agents stopped asking Gerald questions, although both agents indicated that Gerald continued to discuss his gambling extensively. Once Gerald arrived at the Pennington County Jail, he was booked and signed the standard booking form.

On January 16, 2014, Agent Cooper prepared an affidavit in support of an application for a search warrant for Gerald's trailer on the Pine Ridge Indian Reservation, Gerald's cell phone, and Gerald's 1992 Ford Thunderbird. Agent Cooper was unable to present the affidavit to a federal judge, so he presented the applications to South Dakota State Seventh Circuit Court Judge Robert Gusinsky. Judge Gusinsky issued the search warrants.

On January 17, 2014, law enforcement searched Margaret Clark's residence, which is located on the Pine Ridge Indian Reservation. Clark informed law enforcement that the house belonged to her and she had control over all of it. She consented to a search of her property, although she stated she did occasionally let relatives stay at her home and she did not know which items belonged to which person.

While in custody at the Pennington County Jail, Gerald placed numerous phone calls to different individuals. At the beginning of each call, an announcement warns both parties to the call that the call is being recorded. Gerald had conversations with another inmate regarding drug activity, and the inmate reported the discussions to his attorney and law enforcement. Gerald also wrote two letters and a note, which were eventually seized and searched by law enforcement.

Gerald moved to suppress his statements and the evidence from the hotel room and his car based on alleged Fourth Amendment violations, and for a Franks hearing. Docket 30; Docket 142. Gerald also moved to suppress the recorded telephone calls. Docket 129. Gerald moved to suppress the sealed envelopes and for a Franks hearing, Docket 140, and to suppress evidence taken from tribal land based on a lack of jurisdiction, Docket 157. Neil moved to suppress the recorded phone calls, Docket 154, and to suppress evidence from a 2012 traffic stop, Docket 161. Neil also moved to join Gerald's motion regarding the envelopes and Gerald's motion regarding evidence seized on tribal land. Docket 160 (joinder in tribal land motion); Docket 163 (joinder in envelopes motion).

The magistrate judge found that the initial knock and talk complied with the requirements of the Fourth Amendment. Docket 248 at 11-12. Because the government indicated it did not intend to introduce any pre-arrest statements by Gerald at trial, the magistrate judge recommended Gerald's motion to suppress pre-arrest statements be denied as moot. Id. at 12. The magistrate judge also concluded that Gerald consented to the search of his room and his vehicle. Id. at 13-16. In doing so, the magistrate judge rejected the testimony of Gerald's handwriting expert, who claimed Gerald's signature was forged. Id. at 16-18. The magistrate judge also determined that Gerald's consent was voluntary, knowing, and intelligent. Id. at 18-19. Thus, the magistrate judge concluded that even if Gerald did not consent to the initial entry into the hotel room, Gerald's subsequent consent to search allowed law enforcement to search his hotel room and car. The magistrate judge recommended that Gerald's motion to suppress evidence obtained from his car and hotel room be denied. Id. at 19-22. The magistrate judge recommended that Gerald's motion to suppress post-arrest statements be denied because any statements made were voluntary. Id. at 22-23.

With respect to the January 16, 2014, search warrants, the magistrate judge found no basis for a Franks hearing. Id. at 23-28. She determined that the warrants were supported by probable cause and Judge Gusinsky had the authority to issue the warrants. Id. at 28-30, 38-39. The magistrate judge recommended that the motions to suppress jail telephone calls by both Gerald and Neil be denied because they were recorded in the ordinary course of business and Gerald and Neil had notice the calls were being recorded. Id. at 30-31. The magistrate judge concluded that the documents obtained from Scott Burleson, Pablo LeBeau, and Luke Pond were not obtained in violation of the Fourth Amendment. Id. at 32-34. With respect to the sealed letters, the magistrate judge found no basis for a Franks hearing and concluded that the search warrant was supported by probable cause. Id. at 34-37. The magistrate judge also recommended that Neil's motion to join be denied because he could show no reasonable expectation of privacy in any of those materials. Id. at 31-32.

With respect to the evidence taken from tribal land, the magistrate judge concluded that the state court judge had authority to issue the search warrants and recommended that Gerald's jurisdictional argument be rejected. Id. at 38-39. The magistrate judge found that Gerald did not demonstrate a reasonable expectation of privacy in Margaret Clark's residence. Id. at 39-41. Again, the magistrate judge recommended that Neil's motion to join be denied because Neil did not show that he had a reasonable expectation of privacy in any of the places searched. Id. at 37-38. Finally, the magistrate judge recommended that Neil's motion to suppress evidence obtained during a 2012 traffic stop be denied as moot because the government indicated it did not intend to offer such evidence. Id. at 41.

DISCUSSION

I. Jurisdiction

Gerald objects to the report and recommendation's jurisdictional statement. Gerald's argument, in its entirety, states that "[Gerald] is a Native American and this Court does not have jurisdiction over his person." Docket 273 at 2. Objections to a magistrate judge's report and recommendation must be specific enough to allow a district court to understand the nature of the objection and to rule on it. Gerald's single unsupported sentence does not point the court to any reason why this court would not have jurisdiction over Gerald. Nonetheless, having considered the jurisdictional issue de novo, the court finds it does have jurisdiction over this matter and over Gerald personally. See United States v. Drapeau, 414 F.3d 869, 877-78 (8th Cir. 2005) (stating that federal drug laws apply on reservations and to tribal members); LeBeaux v. United States, 165 F.Appx. 496, 498 (8th Cir. 2006) (unpublished decision)[3] (rejecting a similar argument by Gerald, in an action related to his first federal drug conviction, that the Fort Laramie Treaty deprived the district court of jurisdiction over a drug conspiracy charge against Gerald). The objection is overruled.

II. Factual Background

Gerald objects that the report and recommendation "makes numerous factual findings based on testimony unsupported by physical evidence." Docket 273 at 2. Gerald provides no authority requiring physical evidence to support factual findings. Testimony, particularly credible, consistent, and corroborated testimony, is sufficient to support the report and recommendation's factual background statements.

Gerald's objection also identifies examples of factual conclusions in the report and recommendation that he believes are either unsupported or false. Id. at 2-3. Gerald argues that the evidence does not show he ever possessed a gun. The report and recommendation did not state that Gerald in fact possessed a gun. Rather, it accurately recounted Agent Cooper's testimony that law enforcement had received reports that Gerald had access to guns and had threatened violence if confronted by law enforcement. That testimony was offered to support Agent Cooper's belief that he should assist Agent YoungBlood in a potentially dangerous situation. Physical evidence is not required to support Agent Cooper's conclusion.

Gerald contends that the report and recommendation's description of the identity of the female in his hotel room is inaccurate. He argues that Tyra Smith was never in the company of Nickle and no witnesses tied her to Nickle. That argument is unsupported by the evidence. Although the issue of Smith's actual identity and the identity of the woman known as Jessica Fields is confused, multiple witnesses testified that hotel staff identified the woman with Gerald (Smith) as the same woman seen with Nickle (Fields). The report and recommendation correctly attributed those statements to hotel staff.

Gerald argues that the report and recommendation's statement that officers reviewed surveillance video of the female with Gerald is false. The basis of Gerald's objection is "[n]o such video exists." Multiple witnesses testified that they viewed surveillance footage. The fact that the footage was not subsequently taken into evidence does not mean officers did not view it at the time. The report and recommendation accurately represents the credible testimony of the witnesses.

Gerald asserts that the report and recommendation's statement that Gerald allowed law enforcement to enter his room is inaccurate because there is no written consent and the audio does not prove consent. The report and recommendation relies on the testimony of the agents and notes the limitations of the audio recording. The report and recommendation's statement is supported by the testimony of multiple witnesses and is not undermined by the lack of a written consent to the initial entry.

Gerald argues that the report and recommendation inaccurately states that Agent Tolsma entered the hotel room. Gerald bases his argument on the fact that Agent Tolsma moved the latch on the door without Gerald's consent, thereby keeping the door open and allowing Agent Tolsma to enter later. Gerald's argument is unsupported by the testimony at the hearing. Agent Tolsma testified that he did not move the latch after Gerald initially came out of the room, but the door stayed ajar on its own. Docket 193 at 75 (Tr. 283). Agent Tolsma explained that he did not move the latch to keep the door open until they were searching the room to allow other agents to enter without getting a key from the manager. Id.

Gerald argues that the report and recommendation improperly stated that Gerald's prior attorney admitted that Gerald gave law enforcement permission to enter his hotel room to remove the female. Gerald believes that statement is improper because Gerald's previous attorney never testified at the suppression hearing. The statement referenced in the report and recommendation is found at Docket 31 at 1 ("Defendant [Gerald] LeBeau granted permission only to remove the female from his hotel room."). The report and recommendation relied on the testimony of law enforcement that Gerald gave them permission to enter the room to speak with the female in the room. The ...


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