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United States v. Heying

United States District Court, D. Minnesota

October 15, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
ALEXANDER EDWARD HEYING, Defendant.

LeeAnn K. Bell, Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, Minneapolis, MN for plaintiff.

Peter B. Wold and Aaron J. Morrison, WOLD MORRISON LAW, Minneapolis, MN Steven T. Grimshaw, ATTORNEY AT LAW, Minneapolis, MN, for defendant.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

JOHN R. TUNHEM, District Judge.

Defendant Alexander Edward Heying was indicted, along with two other defendants, [1] for conspiring to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and conspiring to commit money laundering by promotion in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and 1956(h). Alexander Heying moves to dismiss the indictment on the grounds that the scheduling of marijuana is over-inclusive, and the federal government's marijuana-related enforcement policies violate the doctrine of equal sovereignty. He also moves to suppress a number of pieces of evidence in this case. On August 15, 2014, United States Magistrate Judge Steven E. Rau issued a Report and Recommendation ("R&R"), recommending that the Court deny the motions to suppress filed by Alexander Heying [Docket No. 131]. On the same day, the Magistrate Judge also issued an R&R recommending that the Court deny his motion to dismiss [Docket No. 133]. This matter is now before the Court on Alexander Heying's objections to those R&Rs. Finding no clear error or manifest injustice in the Magistrate Judge's recommendations, the Court will overrule Alexander Heying's objections and adopt the Reports and Recommendations of the Magistrate Judge.

BACKGROUND[2]

The United States filed an indictment against Alexander Heying and other defendants on February 3, 2014, charging them with conspiracy to distribute marijuana and conspiracy to commit money laundering by promotion. (Indictment, Feb. 3, 2014, Docket No. 1.) Law enforcement, both before and during its investigation into the alleged conduct, conducted several searches that Alexander Heying now challenges. Law enforcement first conducted a search of an automobile driven by Alexander Heying. (Tr. of Mots. Hr'g ("Tr.") at 12:6-9, 19:3-11, June 20, 2014, Docket No. 93.) Trooper Dean Riedeo, a Nebraska State Patrol sergeant, stopped Alexander Heying's vehicle for speeding on March 23, 2003. ( Id. at 12:6-13:5.) Upon smelling fresh marijuana in the car, Trooper Riedeo asked Alexander Heying to exit the vehicle and sit in the patrol car while they discussed Alexander Heying's trip. ( Id. at 13:17-25, 14:11-15:6.) Trooper Riedeo observed that Alexander Heying became more nervous as the conversation progressed. ( Id. at 14:14-15:1.) Trooper Riedeo also noticed that there were inconsistencies both within Alexander Heying's own description of his trip and between Alexander Heying's account and the account of his fellow passenger. ( Id. at 14:13-21, 16:11-20.) After a second Trooper arrived at the scene and confirmed that he smelled marijuana in the vehicle ( id. at 17:8-17, 18:6-9), Trooper Riedeo asked Alexander Heying and his passenger if there was any marijuana in the car ( id. at 18:20-25). Alexander Heying admitted that there was. ( Id. at 18:23-19:1.) Trooper Riedeo then announced that he was "going to search the vehicle based on probable cause[] that there was marijuana in the car." ( Id. at 19:4-6.) He proceeded to search the vehicle and found marijuana and cash. ( Id. at 19:7-11.)

Law enforcement also executed three search warrants for property owned by Alexander Heying's parents and used by Alexander Heying. Law enforcement executed the first search warrant on September 15, 2005, at 2660 Stone Arch Road in Woodland, [3] Minnesota. (Mot. to Suppress Search and Seizure at Stone Arch Road ("Mot. to Suppress re: Stone Arch Road"), May 23, 2014, Docket No. 61; Gov't's Resp. to Defs.' Pretrial Mots. ¶ 12, May 30, 2014, Docket No. 78.) The property at 2660 Stone Arch Road is owned by Gregory Heying, Alexander Heying's father, but was allegedly used by Alexander Heying and others as a location to possess and deal controlled substances. (Gov't's Post-Hr'g Summ. of Status of Defs.' Pretrial Mots. ("Gov't's Post-Hr'g Summ."), Ex. 2 (Appl. for Search Warrant and Supporting Aff. ("McGill Aff.")) at 4-5, June 10, 2014, Docket No. 86.)[4] During the search of 2660 Stone Arch Road, the police seized "approx[imately] 79 grams of marijuana, 13 grams of hash, four digital gram scales, packaging materials, two handguns, suspected drug notes, a large black duffel bag with marijuana residue in it and $34, 360 [in] U.S. currency." (Gov't's Post-Hr'g Summ., Ex. 3 (Appl. for Search Warrant and Supporting Aff. (Boelter Aff.)) at 2.)

On October 15, 2005, law enforcement executed a second search warrant - this time at 2451 Robinson Creek Road in Ukiah, California, which is a rural property owned by Gregory and Jean Heying, Alexander Heying's parents. (Gov't's Post-Hr'g Summ., Ex. 5 (Appl. for Search Warrant (Landreneaux Aff.)) ¶¶ 19-20.) Based on aerial surveillance, law enforcement believed Alexander Heying was growing marijuana on the property. ( Id. ¶¶ 22-24.) The search uncovered "22 large marijuana plants the size of [] Christmas trees... and a double car garage full of marijuana which was being dr[i]ed." (Gov't's Post-Hr'g Summ., Ex. 4 (Appl. for Search Warrant and Supporting Aff. ("Vinck Aff.")) at 3.)

The third search warrant was executed on October 15, 2012, at 2511 Bantas Point Lane in Minnetonka, Minnesota.[5] (Gov't's Resp. to Defs.' Pretrial Mots. ¶ 10.) 2511 Bantas Point Lane is the residence of Gregory and Jean Heying. (Vinck Aff. at 2-3.) Alexander Heying spends ten weeks per year at that address and keeps some of his personal papers there. (Tr. at 126:4-15.) On October 15, 2012, law enforcement officers seized multiple pieces of evidence from 2511 Bantas Point Lane, including a number of bills and records pertaining to Alexander Heying. (Mem. in Supp. of Mots. to Suppress, Ex. AA (Report of Investigation), July 1, 2014, Docket No. 100.)

On June 6, 2014, the Magistrate Judge held an evidentiary hearing. He subsequently issued several R&Rs, two of which address Alexander Heying's motions. (R&R ("R&R re: Mots. to Suppress"), Aug. 15, 2014, Docket No. 131; R&R ("R&R re: Mot. to Dismiss"), Aug. 15, 2014, Docket No. 133.) Alexander Heying timely objected to both R&Rs. (Objections ("Alexander Heying Objections I"), Aug. 26, 2014, Docket No. 135 (objecting to the R&R regarding Alexander Heying's motions to suppress (Docket No. 131)); Objections ("Alexander Heying Objections II"), Aug. 26, 2014, Docket No. 136 (objecting to the R&R regarding Alexander Heying's motion to dismiss the indictment (Docket No. 133)).)

ANALYSIS

I. STANDARD OF REVIEW

Upon the filing of a report and recommendation by a magistrate judge, a party may "serve and file specific written objections to the proposed findings and recommendations." Fed.R.Civ.P. 72(b)(2); accord D. Minn. LR 72.2(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3). "The objections should specify the portions of the magistrate judge's report and recommendation to which objections are made and provide a basis for those objections." Mayer v. Walvatne, Civ. No. 07-1958, 2008 WL 4527774, at *2 (D. Minn. Sept. 28, 2008). Objections which are not specific but merely repeat arguments presented to and considered by a magistrate judge are not entitled to de novo review, but rather are reviewed for clear error. See, e.g., Martinez v. Astrue, Civ. No. 10-5863, 2011 WL 4974445, at *3 (E.D. Pa. Oct. 19, 2011) (citing cases from numerous ...


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