Howe v. Howell
| Decision Date | 03 May 2021 |
| Docket Number | No. 2:19-cv-00067,2:19-cv-00067 |
| Parties | JIM HOWE, D/B/A BIG JIM'S BONDING, Plaintiff, v. RONNY HOWELL, ELIZABETH WILLIAMS, CUMBERLAND COUNTY, TENNESSEE, CASEY COX, JASON ELMORE, JON WIREY, and JEFF SLAYTON, Defendants. |
| Court | U.S. District Court — Middle District of Tennessee |
This civil action arose from the execution of a search warrant at Big Jim's Bonding in Crossville, Tennessee on August 29, 2018. Jim Howe, d/b/a Big Jim's Bonding, brings three federal and five state law claims against two sets of Defendants. Both have filed motions for summary judgment: (1) a Motion for Summary Judgment (Doc. No. 76) filed on behalf Special Agents Ronny Howell of the Tennessee Department of Revenue ("TDOR") and Elizabeth Williams of the Tennessee Bureau of Investigations ("TBI") (the ); and (2) a Motion for Summary Judgment (Doc. No. 72) filed on behalf of Cumberland County, its Sheriff Casey Cox, and Investigators Jason Elmore, Jon Wirey and Jeff Slayton (the "county Defendants"). Also pending before the Court are Plaintiff's "First Motion for Set Aside of Agreed Protective Order" (Doc. No. 103) and his Motion for Leave to File Sur-Response (Doc. No. 106).
For the reasons that follow, Defendants' Motions for Summary Judgment will be granted, Plaintiff Motion to Set Aside will be denied, and Plaintiff's Motion for Leave to File Sur-Response will be denied as moot. (Doc. No. 106).
Plaintiff is married to Amanda Howe. At some point, she told her friend, Lisa Luttrell, that Plaintiff had allegedly traded sexual favors for bonds, and "possibly raped a girl." (Doc. No. 87, SOF ¶ 4). Mrs. Howe told Luttrell that she was afraid of her husband and had consulted with several lawyers about obtaining a divorce. She also said that, should her husband be charged with a crime, he would "lie his way out" and intimidate witnesses. (Id. ¶ 5).
On April 25, 2018, Mrs. Howe met with Luttrell, ADA Worley, and Inv. Slayton, and confirmed the allegations. She also provided further information, along with the names of individuals with knowledge. Ms. Howe's information prompted an investigation into whether Jim Howe was trading sex, drugs, or stolen goods for bonds. (Id. ¶ 7).
ADA Worley and Inv. Slayton began interviewing some of the individuals Mrs. Howe had named. Invs. Elmore and Wirey were present for some of those interviews. After interviewees began confirming that Plaintiff had traded sex for bonds, ADA Worley referred the matter to the TBI for investigation.
SA Williams was assigned the case. She understood that, while there were some allegations of kidnaping and rape, the primary allegation was the exchange of sexual favors for bonds. SA Williams conducted further interviews, sometimes with the assistance of Inv. Slayton and/or Inv. Elmore. This included interviewing Plaintiff, and some of the individuals who had business with his bail bonding company.
Multiple women "recounted situations of sexually predatory acts by Plaintiff." (Id. ¶ 12).Plaintiff vigorously disputes these allegations, and claims that at least one of the individuals who had been interviewed later recanted her statements. However, he does not know whether this alleged recantation occurred before or after the execution of the search warrant at issue in this case. (Id. ¶ 13).
While all of this was going on, TDOR was "concurrently" investigating Plaintiff regarding the failure to pay his business's quarterly tax bonds. According to Plaintiff, he got behind on his taxes due to illness and arranged with Mark Sells of the TDOR for an extension of time within which to pay his first quarter taxes for 2018. Plaintiff also claims that he reached an agreement with Sells to pay his second quarter taxes by the end of August 2018. (Id. ¶¶ 15, 16).
Also during this same general time-frame, the TDOR was investigating Plaintiff for "the alleged willful attempt to evade bail bond tax due the state of Tennessee during the period January 2017 through March 2018." (Doc. No. 94-1 at 3). This investigation arose after District Attorney General Bryant Hathaway of the 13th Judicial District2 asked TDOR to review Big Jim's Bonding taxes because he had been informed that Plaintiff "was receiving inappropriate favors in exchange for the issuance of bail bonds in Cumberland and Putnam counties." (Id.). On July 25, 2018, Brian L. McGhee, a TDOR Special Agent issued a report recommending that the investigation be closed because, during the relevant period, Big Jim's Bonding had reported more bonds than were issued and remitted more in bail bond taxes.3
On the day the warrant was issued, SA Ronnie Howell first learned of TDOR's investigationinto Big Jim's Bonds. SA Howell was contacted because the assigned case agent was involved in serving a warrant on a different business, and Howell was the nearest available agent. Howell drove from Chattanooga to Crossville where he met with ADA Worley and another ADA who were tasked with drafting the search warrant affidavit. In drafting the warrant, the ADAs spoke with TDOR staff attorney Will Binkley, Seth Stinson, a TDOR employee based in Nashville, SA Williams, and Inv. Elmore. There was also a several hour roundtable discussion among those in attendance.
The search warrant affidavit, signed by SA Howell, alleged violations of Tenn. Code Ann. §§ 67-1-1440(d), 67-4-803, and 67-4-806. The first statute makes it a Class E felony for any person to "delay, hamper, hinder, impede, obstruct, or thwart the state of Tennessee in the collection of any of its revenue"; the second requires that a tax of $12.00 be collected for each bail bond issued; and the third makes it the "the duty of the bail bondsman to collect the tax imposed[.]" The affidavit claimed that Plaintiff was not collecting the $12.00 tax from some of his clients. Rather, and relaying what others involved in the investigation had told him, SA Howell stated that: (1) Christian Bilbrey claimed that, after being arrested for possession of drug paraphernalia, Plaintiff suggested she have sexual intercourse with him in exchange for the bond, and that she gave Plaintiff 90 Roxicodone tablets and an 8-ball of methamphetamine as payment for the bond; and (2) Britney Russell said that sometime around Christmas 2015 she was arrested, and she performed oral sex on Plaintiff in exchange for the bond. (Doc. No. 1-2 at 7). SA Howell also averred that a review of state records showed that Big Jim's Bonding failed to pay timely the bonding tax for the third and fourth quarters of 2017 and the first quarter 2018. Further, while payment for those bonds was made on June 18, 2018, the payment did not include applicable interest or penalties, and the bond for the second quarter of 2018 was still outstanding. (Id.).
SA Howell's affidavit was presented to Cumberland County Judicial Commissioner Lou Blevins on August 29, 2018, who issued a search warrant for the office of Big Jim's Bonding. The warrant provided that "the evidence to be searched for" includes:
a bit-by-bit image of the business' computer hard drive, any electronic storage media including but not limited to diskettes, jump drives, tapes, CDs, DVDs, PDAs, etc. and/or records in any form that may document the number of bonds written, the amount of bail bond tax collected by the business, bail bond tax receipts, bail bond logs, bail bond contracts, bail bond reports, bail bond tax returns, federal tax returns, business tax returns, information provided to the business' accountant related to bail bond tax, information provided to the business' insurance companies regarding bail bonds, bank statements, check ledgers, check records, other records kept in due course of business for Big Jim's Bonding. Also any vehicles, out buildings, and storage facilities owned, leased or used by Big Jim's Bonding or James (Jim) Alexander Howe located at 59 South Main Street, Suite 101 Crossville, Cumberland County, Tennessee.
(Doc. No. 1-1 at 2). The warrant was executed the same day it was issued by SAs Howell and Williams, and Invs. Slayton, Elmore, and Wirey.
At the time of execution of the warrant, Plaintiff was not on the premises, but was summoned there by a Big Jim's employee. Ivy Gardner, Plaintiff's lawyer, also arrived on scene. Both saw the search warrant. (Doc. No. 90, SOF ¶¶ 9-10).
Two employees of Big Jim's Bonding were interviewed as the search was being conducted. Plaintiff provided his cellphone and passcode, and opened the business safe upon the demand of authorities. Plaintiff and his lawyer were asked to leave the building during the search and, according to Plaintiff, when Gardner objected, they were threatened with arrest by Inv. Slayton (Doc. No. 87, SOF ¶ 38). Both remained outside for the duration of the search. (Doc. No. 90, SOF ¶ 12).
Evidence seized during the search was transported to the Cumberland County Sheriff's Department. Plaintiff claims that, among the items seized was almost $8,000 in cash surety money,the second quarter bail bond tax return, various files, and cell phones. Laptops on the premises were not seized, nor were firearms that were discovered during the search. (Id. ¶¶ 42, 43). No county Defendants created a log of the items seized - they claim it was not their warrant and hence not their responsibility - but SA Howell completed a handwritten log that Plaintiff characterizes as "inadequate." (Id. ¶ 44).
At some point, perhaps weeks later, SAs McGhee and Williams, Invs. Slayton, Wirey, and Elmore, and ADAs Worley, and Hatch examined the documents at the Sheriff's office, but found no cash in the files. After the review, SA McGhee took the evidence with him, but later returned it to the Cumberland County Sheriff's office where it was retrieved by Plaintiff approximately two months after the initial seizure. (Id. ¶¶ 45-49). Plaintiff claims that, not only was $7,970 in cash missing, but also "evidence bags 3, 5, 7, 8, 11, 17, and 18." (Id. ¶ 49).
Plaintiff alleges...
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