United States District Court, D. Minnesota
Clifford B. Wardlaw, Assistant United States Attorney,
Minneapolis, MN, on behalf of Plaintiff United States of
S. Becker, Esq., Office of the Federal Defender, Minneapolis,
MN, on behalf of Defendant Gary Richard Auginash, Jr.
J. Morrison, Esq., Wold Morrison Law, Minneapolis, MN, on
behalf of Defendant Stanley Richard Cook.
AMENDED MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
matter is before the undersigned United States District Judge
for a ruling on Defendant Gary Richard Auginash, Jr.'s
(“Auginash”) Objection [Docket No. 71] and
Defendant Stanley Richard Cook's (“Cook”)
Objection [Docket No. 72] to Magistrate Judge Leo I.
Brisbois' June 14, 2017 Report and Recommendation [Docket
Nos. 69, 70] (“R&R”). In the R&R, Judge
Brisbois recommends denying Auginash and Cook's motions
to dismiss for pre-indictment delay [Docket Nos. 35,
After a de novo review of the record, and for the reasons
stated below, the Objections are overruled and the R&R is
March 7, 2017, Auginash and Cook (collectively,
“Defendants”) were charged by Indictment [Docket
No. 1] with one count of assault with a dangerous weapon in
violation of 18 U.S.C. §§ 2, 113(a)(3), 1151, and
1153(a), and one count of discharge of a firearm during the
commission of a crime of violence in violation of 18 U.S.C.
§§ 2, 924(c)(1)(A)(iii), 113(a)(3), 1151, and
charges arose from a June 21, 2014 incident that allegedly
occurred on the Red Lake Indian Reservation in Minnesota.
Indictment at 1. At about midnight that evening, a female
called tribal police to report that individuals in a maroon
SUV had shot at her house located in the Circle Pines area of
the reservation. Hr'g Tr. [Docket No. 67] at 14-15. The
caller provided the police with the vehicle's Red Lake
license plate number, which listed to JR Auginash.
Id. at 14-15, 46.
Lake Police Sergeant Harlan Johnson (“Sgt.
Johnson”) responded to the call by driving west on
Highway 1 toward Circle Pines. Id. at 14-15. While
en route to the location of the shooting, he saw a vehicle
driving east on Highway 1 that matched the description and
license plate number that the caller had given. Id.
Sgt. Johnson made a U-turn, began following the vehicle, and
engaged his emergency lights for a traffic stop. Id.
at 15-16, 31. In the short time he was driving behind the
SUV, Sgt. Johnson observed it swerving and crossing the fog
line. Id. at 16, 31-32. When the SUV stopped, Sgt.
Johnson pulled directly behind it and Officer Bialke, driving
a separate vehicle, parked his squad car behind
Johnson's. Id. at 17, 29-30. 26, 36.
officers performed a felony stop. Id. at 17, 32. The
occupants of the vehicle, later identified as Defendants
Auginash and Cook, were ordered to exit the vehicle.
Id. at 18-19, 21. Both Defendants exhibited signs of
intoxication, including smelling of alcohol, slurring their
speech, and staggering when walking. Id. at 19-22,
24, 32-36, 38-42. Sgt. Johnson arrested Auginash, the driver,
for DUI and arrested Cook for public nuisance. Id.
at 23, 26, 42. Sgt. Johnson observed a box of beer containing
some unopened beer cans, a shotgun, and some 12-gauge casings
in the SUV. Id. at 28, 33-34. The firearm and
12-gauge casings were seized from the vehicle and were later
logged into custody of the Red Lake Police Department.
Id. at 49.
Johnson then went to the residence where the shooting had
reportedly taken place. Id. at 45. There he
recovered some shotgun shell waddings which he placed in
Ziploc bags provided to him by the home's residents.
Id. Sgt. Johnson also recovered some metal particles
at the scene. Id. at 49. The firearm, shotgun
casings, waddings and metal fragments were logged into tribal
custody. Id. at 49-50.
after the incident, an Auginash family member, the purported
owner of the firearm, sought and obtained a tribal court
order for the return of the firearm. Id. at 49.
Pursuant to the tribal court order, the shotgun was returned
to the Auginash family and is no longer in Red Lake Police
Department custody. Id. The 12-gauge casings and the
wadding remain in tribal custody, but the metal particles
collected from the scene can no longer be located.
Id. at 49-50.
related to the incident were initially filed in Red Lake
Tribal Court but were later dismissed in 2014 in favor of
federal prosecution. Auginash Mem. Supp. Mot. Dism. [Docket
No. 61] at 2. The case was then assigned to a special agent
for the Bureau of Indian Affairs (“BIA”).
Hr'g Tr. at 50. When that agent left the BIA, the case
was transferred to a special agent for the FBI. Id.
The case was reassigned to a second FBI special agent after
the first agent ...