USA v. Flying Horse et al

OCR transcription for search; preserved printed pages are authoritative

Case 5:20-cr-50035-KES Document 259 Filed 07/21/21 Page 1 of 3 PagelD #: <pagelD>

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

WESTERN DIVISION

UNITED STATES OF AMERICA, 5:20-CR-50035-JLV-01
Plaintiff,

REPORT AND RECOMMENDATION
vs,

JOSEPH FLYING HORSE,

Defendant.

Pending is Defendant’s Motion to Suppress (Doc. 65). Based on a careful
consideration of the relevant pleadings, the Court respectfully makes the

following:

RECOMMENDATION

It is respectfully recommended that Defendant’s Motion to Suppress be

denied.

JURISDICTION

Defendant is charged in an Indictment with Possession of a Stolen
Firearm in violation of 18 U.S.C. §§ 922(j) and 924(a)(2) and Possession of a
Firearm While Under Indictment in violation of 18 U.S.C. §§ 922(n) and
924(a)(1)(D). The pending Motions were referred to the Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1)(B) and United States District Judge Jeffrey L.

Viken’s Standing Order dated April 1, 2018.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

Case 5:20-cr-50035-KES Document 259 Filed 07/21/21 Page 2 of 3 PagelD #: <pagelD>

FACTUAL BACKGROUND

Defendant, appearing pro se, filed the present Motion to Suppress on
July 21st, 2020. The Defendant argues the Government failed to lay proper
foundation for the inweduetion: of a cell phone at his preliminary hearing and a
search warrant was not issued to obtain the cell phone. (Doc. 65).

The Government responded to this motion on August 4, 2020. (Doc. 82).
The Government argues the cell phone was abandoned, a search maaan was
obtained, and the issue is moot because the Defendant was subsequently
indicted by a federal grand jury on the same charges listed in the Complaint.

DISCUSSION

The issues are whether the Federal Rules of Evidence apply to
preliminary hearings and whether the issue raised in Defendant’s Motion to
Suppress is now moot. FED. R. Evip. § 1101(d)(3) states “These rules-except for
those on privilege-do not apply to the following... 3) a preliminary examination
in a criminal case.” “At the preliminary hearing, the defendant... may not
object to evidence on the ground that it was unlawfully acquired.” FED. R.
CRIM. P. § 5.1 (e). Since the Federal Rules of Evidence do not apply to
preliminary hearings, the Defendant’s argument that the cell phone was
inadmissible fails.

Additionally, the purpose of the preliminary hearing is to determine
whether probable cause exists to believe the offense which is charged in the

Complaint has been committed by the defendant. Id. The Court need not

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conduct a preliminary hearing if the defendant is indicted on the same charges.
CRIM. P. § 5.1 (a)(2).

Here, a preliminary hearing for the Defendant on these charges was held
on June 3, 2020. (Doc. 18). The Defendant was indicted by a federal grand
jury on June 11, 2020. (Doc. 26). Therefore, Defendant’s Motion to Suppress
the use of the cell phone at his preliminary hearing is now moot because the
grand jury indictment alone is sufficient to maintain the charges against the
Defendant. To the extent the Defendant wishes to raise these suppression
issues at trial, he may do so at the appropriate time.

CONCLUSION

For the foregoing reasons, it is hereby RECOMMENDED that Defendant’s

Motion to Suppress (Doc. 65) be denied without prejudice.

NOTICE TO PARTIES

The parties have fourteen (14) days after service of this Report and
Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1),
unless an extension of time for good cause is obtained. Failure to file timely
objections will result in the waiver of the right to appeal questions of fact.

Objections must be timely and specific in order to require de novo review by the

District Court. Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black,

781 F.2d 665 (8th Cir. 1986).

DATED this @(s#day of July, 2021.
BY THE COURT:

DANETA WOLLMANN
United States Magistrate Judge

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