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United States v. Auginash

United States District Court, D. Minnesota

July 25, 2017

United States of America, Plaintiff,
Gary Richard Auginash, Jr. and Stanley Richard Cook, Defendants.

          Clifford B. Wardlaw, Assistant United States Attorney, Minneapolis, MN, on behalf of Plaintiff United States of America.

          James S. Becker, Esq., Office of the Federal Defender, Minneapolis, MN, on behalf of Defendant Gary Richard Auginash, Jr.

          Aaron J. Morrison, Esq., Wold Morrison Law, Minneapolis, MN, on behalf of Defendant Stanley Richard Cook.




         This 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, 44].[1] After a de novo review of the record, and for the reasons stated below, the Objections are overruled and the R&R is adopted.


         On 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 1153(a).

         The 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.

         Red 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.

         The 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.

         Sgt. 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.

         The day 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.

         Charges 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 ...

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