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United States v. Conteh

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

November 6, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ROY CONTEH, VICTOR SASAY, a/k/a VICTOR SESAY and TAPSIRU DAINKEH, Defendants.

          ORDER

          JEFFREY L. VIKEN, CHIEF JUDGE.

         INTRODUCTION

         A grand jury issued an indictment charging defendants with ten counts of aggravated identity theft in violation of 18 U.S.C. §§ 1028A(a)(1) and 2, and one count of possession of an unauthorized access device in violation of 18 U.S.C. §§ 1029(a)(3) and 2. (Docket 1). After a hearing was held on defendants' motion to suppress evidence, but before ruling by the court, a grand jury returned a superseding indictment charging the defendants with one count of conspiracy to commit bank fraud in violation of 18 U.S.C. §§ 1344 and 1349; twelve counts of bank fraud in violation of 18 U.S.C. §§ 2 and 1344(2); ten counts of aggravated identity theft in violation of 18 U.S.C. §§ 2 and 1028A(a)(1); and nine counts of possession of an unauthorized access device in violation of 18 U.S.C. §§ 2 and 1029(a)(1). (Docket 111). Defendants Tapsiru Dainkeh and Victor Sasay filed motions to dismiss the superseding indictment and Defendant Roy Conteh joined in the motions. (Dockets 151, 155 & 170).

         The motions to suppress were referred to United States Magistrate Judge Daneta Wollmann pursuant to 28 U.S.C. § 636(b)(1)(B) and the standing order of March 9, 2015. An evidentiary hearing was held on March 7 and March 9, 2016. (Docket 109). Magistrate Judge Wollmann issued a report and recommendation ("R&R") on defendants' motions to dismiss. (Docket 172). The magistrate judge recommended defendants' motions to dismiss be denied. Id. at 7. The defendants timely filed objections to the report and recommendation. (Dockets 176-78).

         Under the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a party files written objections to the magistrate judge's proposed findings and recommendations, the district court is required to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. The court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. See also Fed. R. Crim. P. 59(b)(3).

         The court completed a de novo review of those portions of the R&R to which objections were filed. For the reasons stated below, the court finds the magistrate judge's report and recommendation is an appropriate application of the law to the facts presented by the parties at the hearing. For the reasons stated below, the defendants' objections are overruled and the report and recommendation of the magistrate judge is adopted in its entirety.

         DEFENDANTS' OBJECTIONS

         Defendant Roy Conteh objects to the R&R asserting the magistrate judge erred in making the following conclusions:

1. That "there was no destruction of exculpatory evidence." (Docket 176 at p. 1); and
2. That destruction of the video was not done in "bad faith." Id. at p. 2.

         Defendants Sasay and Dainkeh join in Mr. Conteh's objections. (Dockets 177 and 178). Each of these objections will be addressed.

         ANALYSIS

         Defendants filed separate motions to suppress physical evidence seized during the course of a traffic stop and any custodial statements made by the defendants during the stop. (Dockets 97, 103 & 105). The motions to suppress were referred to United States Magistrate Judge Daneta Wollmann pursuant to 28 U.S.C. § 636(b)(1)(B). An evidentiary hearing was held on March 7 and March 9, 2016. (Docket 109). Magistrate Judge Wollmann issued a report and recommendation ("R&R") on defendants' motions to suppress. (Docket 125). The magistrate judge recommended defendants' motions to suppress be granted in part and denied in part. Id. at p. 26. The government timely filed objections to the report and recommendation. (Docket 156). The defendants filed responses to the government's objections. (Dockets 162, 164 & 169). The court entered an order overruling the government's objections and adopting the report and recommendation. (Docket 196 at p. 20). The court suppressed "all physical evidence seized during the traffic stop" and concluded "that statements made by the defendants during the course of the traffic stop are admissible at trial in the government's case-in-chief."[1] Id.

         In the order addressing the issues raised in the suppression hearing, the court made several factual findings which are relevant to the motions to dismiss the superseding indictment. The court's findings in the order are incorporated in this ...


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