United States v. Montgomery
| Decision Date | 17 February 2021 |
| Docket Number | Case No. 3:17-cr-174 |
| Parties | United States of America, Plaintiff, v. Joel Montgomery, Defendant. |
| Court | United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio |
ENTRY AND ORDER GRANTING IN PART, DENYING IN PART AND FINDING MOOT IN PART DEFENDANT'S MOTION FOR RETURN OF PROPERTY (ECF 56). THE UNITED STATES IS ORDERED TO RETURN DIRECTLY TO MR. MONTGOMERY: (1) THE ITEMS LISTED IN EXHIBIT A; (2) CELLULAR PHONE SEIZED FROM HIM AT THE TIME OF HIS ARREST; (3) ATF 67, A BOOK LISTED ON GOVERNMENT EXHIBIT C; (4) 1B99, 1B97, 1B96, 1B94, 1B89, 1B88, 1B87, 1B84, 1B83, 1B82, 1B81, 1B71, 1B61, 1B56, 1B40, 1B34, 1B33, ATF23, 1B30 AND 1B29 LISTED ON EXHIBIT F. BECAUSE THE UNITED STATES ALREADY HAS RETURNED TO MR. MONTGOMERY ITEMS IN GOVERNMENT EXHIBIT B, THE COURT FINDS THIS PORTION OF THE MOTION MOOT. THE UNITED STATES IS ORDERED TO RETURN TO A DESIGNATED FFL: (1) THE TRANSFERABLE FIREARMS LISTED IN GOVERNMENT EXHIBIT C; AND (2) 1B76, 1B85, 1B93, 1B100, 1B101, 1B102, 1B104 (VARIOUS GUN AND SMOKELESS POWDERS) LISTED IN GOVERNMENT EXHIBIT F. THE COURT DENIES MR. MONTGOMERY'S MOTION TO RETURN ALL OTHER PROPERTY LISTED ON GOVERNMENT EXHIBITS D, E, AND F, INCLUDING: (1) ALL OF THE ITEMS LISTED ON EXHIBIT D; (2) ALL OF THE ITEMS LISTED ON EXHIBIT E; AND (3) ATF 73 (THE UNREGISTERED SILENCER), ATF 64 (BLASTING CAPS), AND 1B95, 1B86, 1B31, 1B32 (MIXED TANNERITE AND EXPLODING TARGETS) ON GOVERNMENT EXHIBIT F.
Defendant Joel Montgomery has filed a motion seeking the return of property that authorities lawfully seized from his residence pursuant to various federal and state search warrants during the late 2010s. Following Mr. Montgomery's sentencing and the conclusion of the criminal case against him, the Court conducted a series of hearings on his motion.
During July 2015, the Greene County Sheriff's Office (GCSO) executed a state search warrant at Mr. Montgomery's home in Spring Valley, Ohio, searching for evidence concerning a state criminal damaging investigation. See PSR ¶ 19; see also R. 56.3, Exhibit B1, GCSO Property Inventory Form. During that search, the GSCO seized over 100 firearms from the residence. See PSR ¶ 19. As Mr. Montgomery acknowledged in filings with this Court, the GSCO returned these firearms to him sometime prior to October 2017. See R. 25, Defendant's Motion to Revoke Detention Order ("Despite the government's prior knowledge of these convictions, they nonetheless returned the seized firearms to Mr. Montgomery shortly after the search").
Between 2015 and 2017, the United States executed three search warrants relating to Mr. Montgomery or his residence. First, during July 2015, the Bureau of Alcohol, Tobacco, and Firearms (ATF) searched pursuant to a federal warrant the GCSO storage facility housing the firearms that the state had seized from Mr. Montgomery and later ultimately returned to him. See R. 56.2, Def. Ex. B, Search Warrant for Greene County Storage Facility, Case No. 3:15mj231. In executing this warrant, ATF located and seized a handful of suspected contraband, including, among other things: a homemade silencer; a Rapid Fire machinegun; two unmarked, privatelymanufactured Maadi-Griffin rifles; and several firearm receivers. See id.
Second, during October 2015, federal agents executed on the same day two federal search warrants at Mr. Montgomery's home. See PSR ¶ 25; see R. 56.4, Def. Exhibit C, Inventory for October 2015 Search Warrants at Spring Valley Residence, Case Nos.3:15mj421 and 3:15mj449. Seeking evidence concerning firearms offenses and Mr. Montgomery's possession of stolen government property, agents seized a variety of materials such as electronic media, blasting caps, and components of an Air Force missile warning system. See PSR ¶ 25; see R. 56.4, Def. Exhibit C, Inventory for October 2015 Search Warrants at Spring Valley Residence, Case Nos.3:15mj421 and 3:15mj449. Over the next two years, agents reviewed the seized electronic media and continued their investigation of Mr. Montgomery. See PSR ¶¶ 26- 29.
In October 2017, law enforcement received a tip that Mr. Montgomery was engaging in erratic behavior. See PSR ¶ 29. According to the tipster, Mr. Montgomery had advised that he (Mr. Montgomery) had to leave town or otherwise he would kill people. See id. Mr. Montgomery further had indicated that, when he died, he planned to take people with him. Based on this information, federal agents obtained another search warrant for the Spring Valley residence - this time seeking evidence concerning, among other things, unlawful possession of destructive devices and explosive materials. See R. 56.1, October 2017 Search Warrant and Inventory for Spring Valley Residence, Case No. 17mj490. Executed during October 2017, this warrant resulted in the seizure of additional materials from Mr. Montgomery's home, including: Tannerite, ball bearings and other components of a suspected destructive device. See id.
In October 2017, a federal grand jury returned a multicount indictment against Mr.Montgomery, charging him with violations of 18 U.S.C. § 641 () and 26 U.S.C. § 5861(d) ().1 See R. 14, Indictment. After several continuances of his trial date, Mr. Montgomery ultimately pleaded guilty to these charges during December 2019. See R. 52, Minute Entry; R. 55, Plea Agreement. Three months later, in late February 2020, the Court sentenced Mr. Montgomery to 33-months of imprisonment for these offenses and ordered the forfeiture of the unregistered silencer that he possessed. See R. 59.
Shortly before his sentencing hearing, Mr. Montgomery filed a motion seeking the blanket return of items seized pursuant to the state and federal search warrants described above. See R. 56, Motion for Return of Property. After conducting hearings on this motion during September and November 2020, the Court received into evidence multiple exhibits as well as the testimony of FBI Special Agent Sue Clark and Mr. Montgomery. Based on these materials, the Court makes the following factual findings:
Except as noted below, Government Exhibits A through F represent the totality of items that federal agents seized in this matter pursuant to federal warrants issued in Case Nos. 3:15mj231, 3:15mj421, 3:15mj449, and 3:17mj490. When questioned if there were other materials seized from him but not included on these lists, Mr. Montgomery identified a single item - namely, a cellular telephone taken from him at the time of his arrest in October 2017.2 See R. 73, 11/20/20Hearing Tr. at 617- 19. Notably, he neither made a claim nor submitted evidence demonstrating that the United States had in its possession the over 100 firearms that the GCSO seized from him during July 2015. See id. Through previous motions filed with this Court, he, in fact, conceded that law enforcement already had returned these firearms to him. See R. 25, Defendant's Motion to Revoke Detention Order.
Government Exhibits A - C: The parties have no dispute concerning these exhibits. See 9/1/2020 Minute Entry. Specifically, the United States has agreed to return to Mr. Montgomery without any preconditions the items in Government Exhibit A. See Government Exhibit A. Government Exhibit B lists items that the government already has returned to the defendant. See Government Exhibit B. Finally, other than the item designated ATF 67, Government Exhibit C contains firearms that cannot be surrendered to Mr. Montgomery as a convicted felon but rather must be transferred to a Federal Firearms Licensee ("FFL"). See Government Exhibit C.
Government Exhibit D: Government Exhibit D lists electronic media, each of which has one or more classified files on it, as well as a single paper document marked as classified. See Government Exhibit D; see R. 73, 11/20/20 Hearing Tr. at 592 - 594. Specifically, the Court reviewed in camera Government Exhibit 1, a document detailing certain information that the United States Department of Defense ("DOD") deems classified or secret. See R. 74, 11/20/20 Hearing Tr. at 631. Secret or classified information like that contained in Government Exhibit 1 can be found on each of the electronic devices in Government Exhibit D. See R. 73, 11/20/20 Hearing Tr. at 592 - 594. Under DOD regulations, the presence of a single classified item on a piece of electronic media renders that entire electronic media classified. Id. at 595-96.
Based on the foregoing, the Court finds that the paper document as well as each item ofelectronic media listed on Government Exhibit D constitutes classified material. See id. at 592 - 96. It should be noted that Mr. Montgomery lacks a security clearance and therefore is not entitled to access or handle these materials. See id. The Court further finds that, where, as here, classified information has been improperly placed on electronic media, DOD regulations require the destruction of that electronic media. See id.
Government Exhibit E: Government Exhibit E contains two categories of materials: (1) government/United States property; and (2) proprietary information that belonged to a defense contractor. Specifically, based on the exhibits of the United States and the testimony of Special Agent Clark, the Court finds that the following items on Government Exhibit E are marked as government property or as otherwise belonging to the United States: Items 1B92 (documents), see Gov. Ex. 6, R. 73, 11/20/20 Hearing Tr. at 599; 1B91, 1B66, 1B63, IB62 (various military badges and government identifications), see Ex. 7, R. 73, 11/20/20 Hearing Tr. at 599-600; Items 1B20, see Gov. Ex. 8, R. 73, 11/20/20 Hearing Tr. at 600-601; Items 1B19 (electronic media), see Gov. Ex. 9, R. 73, 11/20/20 Hearing Tr. at 601; 1B70 (documents), see Gov. Ex. 10, R. 73, 11/20/20 Hearing Tr. at 601; 1B132,...
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