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