United States v. Sanders

• Decision Date: 22 April 2020
• Docket Number: Case No. 1:19-cr-00026-SRC
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. DONALD SANDERS, Defendant.
• Court: U.S. District Court — Eastern District of Missouri

UNITED STATES OF AMERICA, Plaintiff, v. DONALD SANDERS, Defendant.

Case No. 1:19-cr-00026-SRC

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI SOUTHEASTERN DIVISION

April 22, 2020

ORDER

This matter is before the Court on Defendant Donald Sanders's pretrial motions. Sanders and his brother, Defendant Marty Luke, were charged in a one-count Indictment [Doc. 1] returned by a grand jury on February 12, 2019, for being previously convicted felons in possession of firearms in violation of 18 U.S.C. § 922(g)(l). The grand jury later returned a Superseding Indictment [Doc. 37] adding a second count against Sanders for tampering with a witness by threat or intimidation in violation of 18 U.S.C. § 1512(b)(2)(A). The grand jury returned a Second Superseding Indictment [Doc. 92] on October 8, 2019, but it does not impact the Court's findings on any of the issues raised in Sanders's pretrial motions.

The Court referred all pretrial motions to United States Magistrate Judge Abbie Crites-Leoni pursuant to 28 U.S.C. § 636(b). Sanders filed a Motion to Dismiss Count II for Vindictive Prosecution [Doc. 49], a Motion to Dismiss the Indictment for Selective Prosecution [Doc. 50], a Motion for Severance [Doc. 51], a Motion for Disclosure of Grand Jury Transcripts [Doc. 106], and a pro se Motion to Dismiss Count II and Motion to Sever Count I from Count II [Doc. 120]. On May 24, 2019, Judge Crites-Leoni held an evidentiary hearing on the Motion to Dismiss Count II for Vindictive Prosecution [Doc. 49], the Motion to Dismiss the Indictment for Selective Prosecution [Doc. 50], and the Motion for Severance [Doc. 51]. Doc. 68.

Judge Crites-Leoni filed a Report and Recommendation [Doc. 79] on July 17, 2019 addressing the motions that were subject of the May 24, 2019 evidentiary hearing. Judge Crites-Leoni filed an Amended Report and Recommendation [Doc. 125] on March 4, 2020 that includes the findings of the July 17, 2019 Recommendation [Doc. 79], as well as her findings on the Motion for Disclosure of Grand Jury Transcripts [Doc. 106] and the pro se Motion to Dismiss Count II and Motion to Sever Count I from Count II [Doc. 120].

In the Amended Recommendation [Doc. 125], Judge Crites-Leoni recommends that Sanders's Motion to Dismiss Count II for Vindictive Prosecution [Doc. 49], Motion to Dismiss the Indictment for Selective Prosecution [Doc. 50], Motion for Disclosure of Grand Jury Transcripts [Doc. 106], and the pro se Motion to Dismiss Count II and Motion to Sever Count I from Count II [Doc. 120] be denied. She further recommends, based upon the United States' written consent [Doc. 63], that the Motion for Severance [Doc. 51] be granted. Sanders filed written objections to the Amended Recommendation [Doc. 135] and the United States filed a written response to Sanders's objections [Doc. 139].

When a party objects to a Magistrate Judge's report and recommendation, the District Judge must conduct a de novo review of the portions of the report, findings, or recommendations to which the party objected. 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made."); United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (citing 28 U.S.C. § 636(b)(1)). In making its de novo determination of the objected-to portions, findings, or recommendations in the Amended Recommendation, the Court has reviewed theentire record, including the audio recording of the May 24, 2019 evidentiary hearing and all exhibits. Counsel stipulated that on de novo review, the undersigned could review a video recording of a jailhouse conversation between Sanders and another person relating to both Count II of the Superseding Indictment and certain of Sanders's Motions. See Doc. 148. The Court also reviewed that video.

To support his Objections, Sanders raises new arguments and proffers new evidence. Doc. 135. The United States does not object to the new arguments or additional evidence at this stage, and requests that the Court decide on the merits all of Sanders's claims. Doc. 139 at p. 2. The Court accordingly has considered the new arguments and proffers new evidence.

I. Objections to findings of fact

Sanders objects to five specific findings of fact in the Amended Recommendation. Doc. 135 at pp. 1-3. Sanders then "asserts that these factual inaccuracies affect the outcome of the legal analysis made by the Court[,]" but offers no further argument or analysis. Doc. 135 at p. 3. The United States argues that "while there were some mis-statements [sic] in the factual statements" in the Amended Recommendation, those misstatements resulted from Sanders's failure to submit any testimony, exhibits, or other evidence at the evidentiary hearing or otherwise before the Magistrate Judge filed her Amended Recommendation. Doc. 139 at pp. 3-4. The Prosecution then argues, "there were no errors in the factual findings that affected the [Magistrate Judge's] analysis of the issues." Id. at 4. The Court addresses Sanders's five objections in turn.

1. Sanders's first objection states:

On page 5, paragraph 1, the Court found that "Officers believe that Sanders attempted a robbery of Erica Tomlinson's residence on January 11, 2019. Since Tomlinson was home and told Sanders the person he was looking for did notlive in the residence, Sanders departed in a white Ford Ranger truck." Defendant objects to this finding of fact. As grounds, defendant states:

a. In fact, Erica Tomlinson had observed the white Ford Ranger at her residence along with a male subject that matched the description of Marty Luke. She identified Marty Luke in a photo line-up. See Exhibit A, paragraph 3.

Doc. 135 at p. 1.

The United States "concede[s] that the factual statement in the Amended Report and Recommendation is not the representation of the facts offered by the Government." Doc. 139 at p. 5. The Prosecution argues that Sanders fails to connect this "mis-statement" with any recommendation in the Amended Recommendation. Id. at 6. The Court acknowledges for the record the factual inaccuracies Sanders notes,¹ and the Court finds, on de novo review, that the inaccuracies do not affect the Court's determination on any of Sanders's motions now before the Court.

2. Sanders's second objection states:

On page 5, paragraph 2, the Court found that "following the burglaries of the Clark and Dodson homes on January 14, 2019, Luke and Sanders were observed at a convenience store in Butler County." Defendant objects to this finding of fact. As grounds, defendant states:

a. In fact, on December 8, 2018, officers were dispatched to Heartland Express, the convenience store, to investigate the stealing of some cigarettes as is referenced in Exhibits B1-B2. Sanders was picked out of a lineup on January 22, 2019, as referenced in Exhibit C.

b. On January 14, 2019, the officers actually obtained the surveillance video from the convenience store. The surveillance video was from the December 8, 2018 stealing of cigarettes incident. Exhibit D, paragraph I.c. The two men were not seen together at the convenience store on the day of the burglaries. They were seen at the convenience store together over one month prior to the burglaries.

Doc. 135 at pp. 1-2.

The United States again concedes that Sanders's "claims as to the dates that the events occurred are correct, but again, are not relevant for the purposes of deciding whether the Prosecution was vindictively or selectively prosecuting Sanders. The underlying investigation of the December 8, 2018 theft case had nothing to do with the prosecutor's motive for charging Sanders." Doc. 139 at p. 6. The Court acknowledges for the record the factual inaccuracies Sanders notes, and the Court finds, on de novo review, that the inaccuracies do not affect the Court's determination on any of Sanders's motions now before the Court.

3. Sanders's third objection states:

On Page 5, paragraph 3, the Court found that "before the truck stopped, either Luke or Sanders threw the Ruger rifle stolen from the Dodson's residence out of the truck windows." Defendant objects to this finding of fact. As grounds, defendant states:

a. In the police reports provided to the defendant, Officer Derek House wrote "As Inv. B. Lowe pursued the white Ford Ranger driven by M. Luke I observed M. Luke to throw several items from the driver's side window of the vehicle as he was fleeing. One of the items, later identified as a .22 caliber long rifle was thrown from the drivers side window of the vehicle..." Exhibit E, paragraph 3.

b. The evidence will show that Marty Luke threw the Ruger rifle from the truck window.

Doc. 135 at p. 2.

The United States responds that it did not know who threw the rifle and argued before the Magistrate Judge that "someone threw a rifle out of the truck." Doc. 61 at p. 5; Doc. 139 at p. 7. The Court acknowledges that Exhibit E, paragraph 3, submitted by Sanders with his objections, does contain a police report stating "I observed M. Luke throw several items from the driver'sside window of the vehicle . . . One of the items, later identified as a .22 caliber long rifle was thrown from the drivers [sic] side window of the vehicle." Doc. 135-1 at p. 6. The Court finds that no factual inaccuracies on this point exist, as the Amended Recommendation states that "either Luke or Sanders threw the Ruger rifle . . ." The Court further finds, on de novo review, that who threw the items does not affect the Court's determination on any of Sanders's motions now before the Court.

4. Sanders's fourth objection states:

On Page 5, paragraph 4, the Court found that "A search of the truck resulted in the seizure of the two additional rifles reportedly stolen from Dodson the, 30-.06 and .243 caliber rifles." Defendant objects to this finding of fact. As grounds, defendant states:

a. On January 12, 2019, Investigator Kellis Thompson executed the search warrant on the white Ford Ranger

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