United States District Court, D. Minnesota
Deshon Andrews, Sherburne County Jail, pro se
L. Gerdts, standby counsel for Defendant
Jeffrey Paulsen, United States Attorney's Office, for the
RICHARD NELSON, UNITED STATES DISTRICT JUDGE
the Court are Defendant Norris Deshon Andrews' Objections
(“Objections”) [Doc. No. 145-3 to the February
21, 2019 Order and Report and Recommendation (“Order
& R&R”) [Doc. No. 133] filed by Magistrate
Judge David T. Schultz. The Order & R&R addressed
several of Andrews' pretrial discovery motions, his
motion challenging pretrial detention, and a number of
motions to dismiss the Indictment and suppress evidence. The
magistrate judge held four evidentiary hearings on these
motions on September 10 and 19, 2018, October 5, 2018, and
December 17, 2018. Combined, the hearings were over 14 hours
long. In the Order & R&R, the magistrate judge denied
Andrews' motions that sought to suppress evidence or
dismiss the Indictment. (See Order & R&R at
to Andrews' request to appear before the district court
judge on his Objections and other matters, (see
Def.'s Letter at 4 [Doc. No. 143]), this Court held
status conferences on April 2 and 8, 2019. At the April 2
status conference, attorney Kevin O'Brien represented
Andrews. (See Apr. 2, 2019 Minutes [Doc. No. 154].)
On April 8, Andrews appeared pro se and Mr. O'Brien
served as standby counsel. (See Apr. 8, 2019 Minutes
[Doc. No. 157].) At both status conferences, the Court heard
oral argument on Defendant's Objections to the Order
& R&R and took the Objections under
advisement. For the reasons set forth below,
Andrews' Objections are overruled.
Shooting, Identification of Suspect, and
is charged with one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and
924(e)(1). (See Indictment [Doc. No. 1].) The charge
stems from a shooting that occurred at approximately 4:45p.m.
on May 15, 2018, near an apartment complex in the 1700 block
of Plymouth Avenue North in Minneapolis. (Def. Ex. 14 (MPD
Case Rpt., Creighton Supp. 13); Sept. 10 Hr'g Tr. at 9-10
[Doc. No. 51].) Security camera footage of the incident shows
a group of people congregating on a sidewalk adjacent to an
outdoor parking area. (See Gov't Ex. 1
(“Cropped Video”); Def. Ex. 18 (“Uncropped
Video”).) Two people arrive in a blue SUV with no front
license plate and approach the group of people.
(Id.) The driver of the SUV-a black man with a
larger frame, long dreadlocks, glasses, a dark colored
t-shirt, distressed jeans, and athletic shoes-appears to
engage in conversation with members of the assembled group.
(Id.) Eventually, he brandishes a gun and fires
several shots before driving away by himself in the SUV.
(Id.) His former passenger runs away from the scene
on foot. (Id.)
thereafter, officers arrived at the scene of the shooting,
(see Def. Ex. 14 (MPD Case Rpt., Creighton Supp.
13)), including Minneapolis Police Sgt. Kelly O'Rourke.
(Sept. 10, 2018 Hr'g Tr. at 10.) Investigating officers
spoke with percipient witnesses. (Id. at 12- 13.)
Although the parties dispute whether these persons were
eyewitnesses to the shooting itself, O'Rourke learned the
following information from officers' discussions with
numerous witnesses: the shooter was described as a large,
heavy-set black male, wearing glasses, with his hair in long
dreadlocks, driving a blue Chevy Tahoe SUV, the shooter was
called “N.O.”, his full name was Norris Andrews,
he was seen arguing with the victims before the shooting took
place, the person accompanying him was named Montrel Tyson,
and a witness provided Andrews' cell phone number and a
photo of him. (Id. at 13, 17; Def. Ex. 15 (MPD Case
Rpt., Bauer Supp. 9); Def. Ex. 58 (MPD Full Case Rpt.,
Pearson Supp. 3, Hanneman Supp. 6, Spee Supp. 11).) Sgt.
O'Rourke accessed a law enforcement database, found jail
photos of Norris Andrews, and compared them to the images of
the shooter from the security camera video. (Sept. 10, 2018
Hr'g Tr. at 13.) He believed that they depicted the same
person. (Id. at 14.) He also conducted a Google
search of the suspect's cell phone number, which
indicated that the subscriber's last name was Andrews.
(Id.; Sept. 19, 2018 Hr'g Tr. at 59 [Doc. No.
other investigating officers, Sgt. O'Rourke learned that
about an hour earlier, a “shots-fired” call had
been placed in the same general area, at 25th and
Girard Avenue North, and similar shell casings were found at
the scene. (Sept. 10, 2018 Hr'g Tr. at 14.) Sgt.
O'Rourke testified that in that earlier incident,
“a blue Chevy Tahoe with no plates was described as a
potential suspect vehicle.” (Id. at 14;
Gov't Ex. 10 (Incident Rpt.) at 2 (call log noting,
“ACCORDING TO WITNESSES BLU TAHOE WAS SHOOTING AT PLE
IMPALA LOW RIDER.”; “DARK BLU TAHOE WITH NO
PLATES”; “SHOTS FIRED . . CLR SAW BLU TK LEFT ON
GIRARD IN UNK DIRECTION . . CLR HEARD PPL ARGUING.”)
(emphasis in original); Def. Ex. 58 (MPD Full Case Rpt.,
Creighton Supp. 13) (stating that 911 caller/witness
identified the shooting vehicle as a dark blue Chevy Tahoe
without any plates and the driver was a large black male with
dark skin and long braided hair)).
on the similarities between the two incidents, the
information from witnesses at the later shooting, and the
shooting captured on the security camera footage, Sgt.
O'Rourke submitted an exigent circumstances order to
T-Mobile, the service carrier of the cell phone number in
question, to “ping” the phone in order obtain
real-time locations and call detail records for the
suspect's cell phone. (Id. at 15; Gov't Ex.
3 (T-Mobile Exigent Request).) Sgt. O'Rourke provided the
following facts in support of the exigent situation:
“[L]ife threatening shooting of two victims, one was
shot in the chest. Eye witnesses know the suspect to
currently be using [phone number]. Zetx shows a last name of
a subscriber to be the same as the suspect.” (Gov't
Ex. 3 (T-Mobile Exigent Request) at 1.) Sgt. O'Rourke
provided further detail on a supplement to the form:
The suspect has been identified as using XXX-XXX-XXXX by an
eye witnesses [sic] to the crime. I am a police investigator
with the Minneapolis Police Department and have been so for
20 years. On this day there was a shots fired call at
23rd and Fremont Avenue in north Minneapolis
(18-156610) at 1518 hours. The shooting being investigated
occurred at 1642 hours at 1711 Fremont Avenue north in
Minneapolis. The same suspect vehicle was described at both
scenes. The second scene produced a video that showed the
individual that is known to use the target number getting
into the described suspect vehicle. The identified suspect
also has an extensive criminal history involving weapons and
narcotics. On this day during the second shooting he was said
to be settling up with a debtor. The egregious part is that
after shooting one of the victims multiple times the suspect
got back out of his vehicle and made another attempt to
finish him off, shooting at him a few more times. I believe
at this point it has only been a few hours and the suspect is
armed and danger[ous] and is a threat to public safety after
showing he can shoot multiple people and commit multiple
shootings in a short period of time.
(Id. at 2.) Sgt. O'Rourke testified that the
above-quoted section of the application contained a
typographical error with respect to the shooting address-the
shooting occurred at 1711 Plymouth Avenue North, not 1711
Fremont Avenue. (Oct. 5, 2018 Hr'g Tr. [Doc. No. 69] at
22-23.) After he submitted the exigent order, Sgt.
O'Rourke received emails approximately every 15 minutes
with information on the location of the phone. (Sept. 10,
2018 Hr'g Tr. at 20.)
approximately 11:00 p.m., the phone appeared to be stationery
in the vicinity of 2810 Girard Avenue North. (Id. at
20-21.) At approximately 11:30 p.m., Sgt. O'Rourke
dispatched two police officers, Officer Andrew Schroeder and
Sgt. Joel Pucely, to the area in order to locate Andrews.
(Id. at 21.) To familiarize himself with
Andrews' appearance, Sgt. Pucely looked at a prior
booking photo or driver's license image of Andrews, as
well as still images from the surveillance video. (Oct. 5,
2018 Hr'g Tr. at 13, 157.) After the officers looked for
Andrews without successfully finding him, Sgt. Pucely
continued his surveillance of the area alone, parked at
29th and Girard Avenue in an unmarked squad car.
(Id. at 14-15, 71.)
his position, Pucely observed a white GMC Yukon with
Minnesota dealer license plates drive by twice. (Id.
at 15-16.) He found the vehicle's movements suspicious,
suggesting that the driver was looking for someone.
(Id. at 16.) The Yukon eventually parked.
(Id. at 17.) Using a pair of binoculars and the
illumination of streetlights, Sgt. Pucely saw two people
leave a house, jog towards the Yukon, and get inside the SUV.
(Id. at 16-18, 51-52.) Although Sgt. Pucely could
not see their faces, he believed that one of them matched the
description of the shooting suspect, based on similarities in
build and hairstyle. (Id. at 18, 36.) Sgt. Pucely
watched as the Yukon pulled away from the curb, but failed to
signal, and turned onto 29th Avenue North without
coming to a full stop at a stop sign. (Id. at
18-19.) Sgt. Pucely followed the Yukon and called Officer
Schroeder to assist in a vehicle stop. (Id.)
Stop and Search of the Yukon
Pucely turned on his lights to initiate a stop for the two
moving violations, and the Yukon promptly pulled over.
(Id. at 20.) Several other officers also arrived.
(See Def. Ex. 7 (Dashcam Video).) The driver was a
woman, Montrel Tyson was the front seat passenger, and Norris
Andrews, who Sgt. Pucely recognized from the booking photos,
was the backseat passenger. (Oct. 5, 2018 Hr'g Tr. at
20-21.) Sgt. Pucely testified that as he approached the car
from the rear, he could not see into the back window because
it was tinted. (Id. at 73-74.) Officer Schroeder
testified that from his vantage point alongside the Yukon,
however, he could see into it and observed the backseat
passenger move around, “leaning towards the I guess
passenger side of the vehicle[.]” (Id. at
159-60.) Pucely asked Andrews to step out of the vehicle, at
which time Andrews was handcuffed and moved to the back seat
of Pucely's squad car. (Id. at 21.)
Pucely's police bodycam video shows that prior to
transporting Andrews, Pucely asked Andrews to exit the squad
car and submit to a search of his person. (Def. Ex. 32
(Pucely Bodycam) at 3:19-3:40.) While Pucely performed the
search of Andrews' pockets, another officer asked Andrews
for his name, (id. at 3:39), which Andrews provided,
adding, “You got my I.D.” (Id. at
3:40-3:44.) Sgt. Pucely responded, “I didn't get an
I.D. from you, that's what I'm looking for, ”
and repeated, “I didn't find an I.D.
anywhere.” (Id. at 3:45-48.)
squad car, Sgt. Pucely entered Andrews' name in a
Minnesota driver's license database. (Id. at
7:54-8:12.) The I.D. results screen, visible from
Pucely's bodycam footage, included Andrews' name,
date of birth, and address. (Id. at 8:12.) Sgt.
Pucely verbally verified with Andrews his middle name and
date of birth. (Id. at 8:13-8:19.) Sgt. Pucely then
asked Andrews for his current address. (Id. at
8:31-32.) After Andrews responded, Pucely stated,
“Okay, so your I.D. is correct.” (Id. at
arrival at the police station, Sgt. Pucely guided Andrews to
the door and through the lobby, indicating directions with a
manila envelope that apparently contained any items removed
from Andrews' pockets. (Id. at 19:08-19:21.)
When Andrews inquired about the whereabouts of his cell
phone, Sgt. Pucely initially stated that Andrews did not have
a cell phone on his person. (Id. 19:09-19:11)
Andrews protested, stating, “Y'all took my stuff
outta my pockets, my I.D. and stuff should be in
there.” (Id. at 19:21.) Sgt. Pucely responded,
“All I took out of your pockets were keys, ”
gesturing with the manila envelope. (Id. at 19:33.)
While escorting Andrews to the interview room, Sgt. Pucely
phoned officers at the scene of the stop. (Id. at
20:09-20:22.) He explained that when he first approached the
Yukon and asked Andrews to exit it, he had removed the phone
from Andrews' lap, and likely placed it on the roof of
the Yukon. (Id. at 20:09; see also Def. Ex.
7 (Dashcam Video) (showing officer place object on roof of
vehicle).) It appears that officers located the phone. (Def.
Ex. 32 (Pucely Bodycam) at 20:30-20:40.) (Sgt. Pucely states,
“Just make sure it's powered off.”)
photos taken of Andrews show a black man with long dreadlocks
and glasses, wearing a dark colored t-shirt, a jacket,
distressed jeans, and black athletic shoes with red and white
trim. (Def's Ex. 5 (May 15, 2018 Photos); Gov't Ex. 5
(May 15, 2018 Photos).)
to towing the Yukon, officers conducted a search of the
vehicle at the scene of the stop. (Oct. 5, 2018 Hr'g Tr.
at 90, 94-95.) They found a 9mm handgun under the back seat
in the vicinity of where Andrews had been seated.
(Id. at 21-22; 105.)
Search of Tahoe, Forensics, and Photo Array
O'Rourke interviewed the driver of the Yukon, identified
at that time as Dominque or Domonique Smith. (Sept. 10
Hr'g Tr. at 24-25; Gov't Ex. 7 (Search Warrant &
App.) at 3.) Andrews disputes that that is her true name and
states that her name is actually Rachelle Hawkins. (Oct. 5,
2018 Hr'g Tr. at 292-93, 295; Def. Ex. 30 (Photograph).)
Sgt. O'Rourke testified that through his investigation,
he believed that Smith's father was the owner of the
Yukon and had consented to her use of it. (Sept. 10, 2018
Hr'g Tr. at 23.) Smith stated that earlier that evening,
she had received a call from Tyson or Andrews, asking for a
ride from the approximate area of 26th Street and
James Avenue North. (Id.) Because she was late to
arrive, she received a subsequent call, directing her to 2810
O'Rourke then sent officers to the vicinity of
26th Street and James Avenue North, where they
found a blue Tahoe, which was taken into police custody.
(Id. at 13.) In July 2018, Sgt. O'Rourke applied
for a search warrant to search the Tahoe,  which he
obtained. (See Gov't Ex. 7 (Search Warrant &
App.).) Inside the vehicle, officers found identification
bearing Andrews' name, including a Minnesota driver's
license, a Visa debit card, a temporary proof of insurance
card, and a Robbinsdale Police Department citation.
(Id.; Sept. 19, 2018 Hr'g Tr. at 14.) Andrews
contends that his driver's license was planted by the
searching officers, asserting that Sgt. Pucely had obtained
his identification card earlier, when he was taken into
custody. (See Def. Ex. 32 (Pucely Bodycam).)
O'Rourke obtained a court order for a DNA sample and
fingerprint sample from Andrews, as well as a photo line-up.
(Sept. 19, 2018 Hr'g Tr. at 19-20; Gov't Ex. 8
(Hennepin Cty. Order).) As to fingerprint evidence,
specifically “friction ridge impression evidence,
” the Minneapolis Crime Lab analyzed the gun for
evidence, comparing it to samples obtained from Andrews and
Tyson. (Def. Ex. 27 (Crime Lab Rpt.) at 1.) The Crime Lab
Report indicates a match between a friction ridge impression
found on the gun and Andrews' right thumb fingerprint.
(Id.) In addition, investigators test-fired a
discharged cartridge casing from the gun, finding that they
matched the casings left at the Plymouth Avenue shooting.
(Def. Ex. 58 (MPD Full Case Rpt., Carlson Supp. 44).)
three days after the shooting, Sgt. O'Rourke interviewed
one of the shooting victims in the hospital. (Sept. 19, 2018
Hr'g Tr. at 15.) The victim stated that he could not
identify the shooter by name, but described him as having
“long dreads or braids, just long hair, glasses.”
(Id. at 16.) Among other things, the victim stated
that he had been talking to his “auntie” when
Defendant fired shots at him. (See Dec. 17, 2018
Hr'g Tr. [Doc. No. 115] at 80-81.) After the shots were
fired, the victim contended that the shooter got into a blue
truck, with someone else at the wheel, and fired additional
shots at the victims from the window of the moving vehicle.
Sgt. O'Rourke returned to the hospital with a photo
array. (Sept. 19, 2018 Hr'g Tr. at 16.) The
photo array included a composite page with six photographs,
followed by six sheets of paper containing the individual
photographs from the composite page, one picture per page.
(Gov't Ex. 6 (Photo Array).) All of the photograph
subjects are black men with dreadlocks. (Id.) The
background on the picture of Andrews is a lighter shade of
grey than the grey background on the other pictures.
(Id.) Andrews' head also appears to be slightly
larger in the frame than in the other photographs.
(Id.) Sgt. O'Rourke told the victim that the
perpetrator might or might not be in the photos, but to take
his time looking at each individual photograph, one at a
time, without Sgt. O'Rourke being able to see them.
(Sept. 19, 2018 Hr'g Tr. at 18.) With certainty, the
victim identified Andrews as the shooter, and signed and
dated the photograph of Andrews to signify the positive
identification. (Id.; Govt. Ex. 6 (Photo Array).)
noted in the Order & R&R, Mr. Reynaldo Aligada of the
Federal Defenders Office previously represented Andrews and
filed a number of pretrial motions on his behalf [Doc. Nos.
24-31; 40-42]. The magistrate judge held a hearing on
September 10, 2018 to address these motions. However, Mr.
Aligada requested a continuance of the evidentiary portion of
the hearing when the Government moved the admission of an
exhibit that was not previously disclosed. (Sept. 10, 2018
Hr'g Tr. at 26-28.)
September 19, 2018, the hearing resumed before Magistrate
Judge Schultz. Andrews stated that he wished to represent
himself for purposes of the hearing and wanted to file
additional motions himself. (Sept. 19, 2018 Hr'g Tr. at
3-8.) After an inquiry, the magistrate judge found that
Andrews knowingly and voluntarily waived his right to
counsel. (Id. at 9-10.) Thus, he granted
Andrews' request to represent himself at the hearing and
appointed Mr. Aligada as standby counsel. (Id.) Sgt.
O'Rourke testified at the hearing and Andrews also cross
examined him at length. (Id. at 21-70, 73-87.)
Because the hearing was running past the close of business
hours, it was continued to October 5, 2018. (Oct. 5, 2018
Hr'g Tr. at 2.)
nearly seven-hour long October 5 hearing, Andrews continued
to represent himself, and Mr. Aligada continued to serve as
standby counsel. (Id. at 2-3.) Sgt. Pucely, Officer
Schroeder, and Andrews testified. (Oct. 5, 2018 Minutes [Doc.
No. 48].) Andrews filed several pro se motions at the hearing
[Doc. Nos. 53-59, 65-66].
thereafter, in light of a conflict of interest that had
arisen between Andrews and Mr. Aligada, the magistrate judge
granted Mr. Aligada's request to withdraw as standby
counsel. (Oct. 18, 2018 Order [Doc. No. 64].) The Court then
appointed Kevin O'Brien as substitute defense counsel.
(Oct. 24, 2018 Order [Doc. No. 67].) Following a November 9,
2018 Feretta hearing at which Andrews appeared to
give contradictory answers about his desire to represent
himself, the magistrate judge gave Andrews additional time to
consider his self-representation decision. (Nov. 13, 2018
Order at 2 [Doc. No. 74].) If Mr. O'Brien were to
continue to represent Andrews, the magistrate judge directed
Mr. O'Brien to withdraw any pro se motions that Andrews
had filed when he was also represented by counsel.
(Id.) The magistrate judge also gave defense counsel
additional time in which to file additional pretrial motions
and to reopen the evidentiary hearing in order to present
additional witnesses or to recall witnesses who had
previously testified. (Id.)
Andrews informed the Court that he was unhappy with Mr.
O'Brien's representation. (Nov. 14, 2018 Letter [Doc.
No. 92].) The magistrate judge held a hearing on December 17,
2018, at which Andrews waived his right to counsel, and the
magistrate judge appointed Mr. O'Brien as standby
counsel. (Dec. 17, 2018 Hr'g Tr. at 4.) At the hearing,
Andrews presented arguments, testified, entered exhibits, and
was cross examined. (See Id. at 2-156.) The
magistrate judge allowed Andrews to re-file any of the pro se
motions that Mr. O'Brien had recently withdrawn.
(Id. at 146-47.) Likewise, the magistrate judge gave
the Government time to respond to any of the re-filed
motions. (Id. at 147.)
Magistrate Judge's Findings and Recommendations
relevant to Andrews' objections, in the Order &
R&R, the magistrate judge ruled on the following
procedural issues: (1) as to evidence in the Government's
possession, but not yet produced to Defendant, (see
Def.'s Pro Se Mot. for Discovery [Doc. No. 75]), because
the Government agreed to produce the material, the magistrate
judge denied Defendant's discovery motion as moot; (2)
regarding Andrews' request to reopen the evidentiary
hearing to call additional witnesses, and to present oral
argument on his motions, (see Def.'s Pro Se Mot.
for Oral Arg. [Doc. No. 110]; Def.'s Pro Se Mot. to
Reopen Pretrial Mot. Hr'g [Doc. No. 111]), the magistrate
judge found that Andrews had not sufficiently demonstrated a
need to reopen the hearing, noting the well-developed record,
which included several days of testimony and numerous
memoranda; (3) as to Andrews' motion for a new detention
hearing, (see Def.'s Pro Se Mot. for Detention
Bond Hr'g [Doc. No. 96]; Def.'s Pro Se Mot. for
Revocation of Order [Doc. No. 109]), the magistrate judge
denied it, finding that none of the grounds that Andrews
asserted would assure his further appearance in court or the
safety of the community. (Order & R&R at 6-8.)
respect to the substantive rulings at issue here, the
magistrate judge denied Andrews' motions to dismiss the
Indictment for allegedly outrageous government
conduct based on the following grounds: (1) fabricated
evidence; (2) destruction of exculpatory evidence; (3)
withheld evidence; (4) witness tampering; (5) eye witness
identification; and (6) vindictive prosecution. (Order &
R&R at 9-13.) The magistrate judge also denied
Andrews' Fourth Amendment motions to suppress evidence
related to: (1) the exigent cell phone location information
(see Def.'s Am. Mot. to Suppress Cell-Site
Location Information [Doc. No. 85]; Def.'s Pro Se Mot. to
Suppress Ev. [Doc. No. 104]); (2) the arrest and search of
the white Yukon (see Def.'s Am. Mot. to Suppress
Ev. From Unlawful Arrest & Stop & Search of GMC Yukon
[Doc. No. 86]); (3) identification through the photographic
array (see Def.'s Am. Mot. to Suppress
Eyewitness Identifications [Doc. No. 87]); (4) the search of
the blue Tahoe (see Def.'s Mot. to Suppress Ev.
from Search of Chevrolet Tahoe & Request for
Franks Hr'g [Doc. No. 88]; Def.'s Pro Se
Mot. to Suppress Search Warrant [Doc. No. 97]); (5)
percipient witness identification (see Def.'s
Pro Se Mot. to Compel Disclosure of Identification Witness
[Doc. Nos. 102]; Def.'s Pro Se Mot. to Suppress
Identification of Defendant [Doc. No. 103]); and (6) untimely
disclosures (see Def.'s Pro Se Mot. to Suppress
All Late & Untimely Ev. [Doc. No. 99]; Def.'s Pro Se
Mot. to Add On/Amended Mot. to Doc. No. 55 [Doc. No. 112]).
has filed lengthy Objections to the Order & R&R, in
which he advances several arguments. First, he contends that
Magistrate Judge Schultz was biased in the following ways:
(1) making the Government's case for it and generally
favoring the Government, (Objs. at 2, 7, 19, 22, 38-39, 51);
(2) taking longer to respond to Defendant's motions and
generally causing delay, (id. at 3-4, 11-12, 16-17,
54, 56); (3) not reading Defendant's motions,
(id. at 12-13); and (4) characterizing the facts of
the case in contradiction of the evidence and relying on
false statements and testimony, (id. at 5, 7, 20,
24, 40-48, 50).
addition, Andrews appears to argue that the magistrate judge
denied him due process with respect to his pretrial motions,
which he argues is also indicative of bias, citing the
following examples: (1) ruling on motions without holding
hearings or considering evidence, (id. at 3); (2)
denying him access to a law library or computer while in
pretrial detention at the Sherburne County Jail,
(id. at 4, 9, 17); (3) relying on exhibits that were
not introduced at the evidentiary hearings, (id. at
6); (4) denying requests for defense witnesses and supporting
evidence, and cutting hearings short, (id. at 8-9,
20, 35); (5) forcing him to accept Mr. O'Brien as his
counsel, even though Defendant had “fired” him,
(id. at 9-11); (6) taking too long to rule,
(id. at 17); (7) failing to rule in point-by-point
detail by addressing each motion individually, (id.
at 20); (8) permitting the Government's untimely
disclosure of evidence, (id. at 33-35, 55); and (9)
permitting the Government to ask leading questions.
(Id. at 22.)
Andrews argues that the magistrate judge improperly relied on
falsified, tampered, and planted evidence. (Id. at
21, 23-30, 32, 35, 36-37, 40-43, 45, 48, 50.) He also
contends that the Government has withheld exculpatory
evidence. (Id. at 31-34, 46-47, 55.) In addition, he
contends that his motions were tampered with, citing the
removal of pages. (Id. at 23.)
reasserts his arguments to suppress the exigent cell phone
location information, arguing that the Government was
required to obtain a search warrant and failed to do so,
(id. at 38-42), and the Government lied about the
exigent circumstances in order to obtain the information.
(Id. at 42-45.) Similarly, he argues that there were
no grounds to stop or search the white Yukon, (id.
at 48), the photo array was unduly suggestive, (id.
at 49), and the search of the Tahoe should be suppressed
because the warrant was improperly obtained, evidence was
planted, and the vehicle was held for too long. (Id.
also moves for the disclosure of the identity of the
percipient witness, arguing that the video evidence
demonstrates that this witness was not an eye witness to the
shooting, and the Sixth Amendment grants him the right to
confront the witness's accusations. (Id. at
53-54.) Further, Andrews challenges the magistrate
judge's denial of reconsideration of his pretrial
detention. (Id. at 15-16.)
the Court notes that in separate objections, ([Doc. No.
150]), Andrews challenges the magistrate judge's separate
Report and Recommendation ([Doc. No. 144]) on Andrews'
Motion to Dismiss for Speedy Trial Violations. The Court
addresses the speedy trial objections in a separate order.
district court must undertake an independent, de novo review
of those portions of the R&R to which a party objects and
“may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C); see
also D. Minn. L.R. 72.2(b)(3).
outset, the Court notes that Andrews often confuses issues
more properly reserved for trial, including, for example,
witness credibility, and the ultimate issue of his guilt or
innocence, with the legal standards and facts relevant to his
suppression motions. Some of his arguments may potentially be
raised at trial, subject to the requirements and standards of
the Federal Rules of Evidence and Rules of Criminal
Procedure, but are not germane to the suppression and
dismissal motions, as noted below.
Bias and Due Process
Andrews appears to argue throughout his Objections that
because bias infected the magistrate judge's analysis and
recommendations, this Court should sustain his Objections and
grant his motions. As noted, he contends that Magistrate
Judge Schultz favored the Government, (Objs. at 2, 7, 19, 22,
38-39, 51, 56), took longer to respond to Defendant's
motions and generally caused delay, (id. at 3-4,
11-12, 16-17, 54, 56), failed to read Defendant's
motions, (id. at 12-13), and characterized the facts
contrary to the evidence and relied on false statements and
testimony. (id. at 5, 7, 20, 24, 40-48, 50). A
number of Andrews' arguments concern alleged due process
violations, which he claims are indicative of the magistrate
accusations of judicial bias are asserted in order to seek a
judge's recusal under 28 U.S.C. § 455 and §
144, not to appeal evidentiary and suppression rulings. Thus,
Andrews' allegations of “bias” do not lead to
the result that he seeks here-a favorable ruling on his
underlying motions. Rather, under § 455, a judge or
magistrate judge must disqualify himself from any proceeding
in which “he has a personal bias or prejudice
concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding.” 28 U.S.C.
extent that Andrews seeks the recusal of the magistrate
judge, it is denied. There is no showing of personal bias,
let alone a showing that personal bias influenced the
magistrate judge's Order & R&R. The fact that
Andrews disagrees with Magistrate Judge Schultz's
findings and recommendations does not support a claim of
bias. The Supreme Court has stated that “judicial
rulings alone almost never constitute a valid basis for a
bias or partiality motion.” Liteky v. United
States, 510 U.S. 540, 555 (1994). Instead,
“opinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current
proceedings . . . do not constitute a basis for a bias or
partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment
Court's review of the exhaustive record here shows no
such “deep-seated favoritism or antagonism.” To
the contrary, the magistrate judge presided over multiple
lengthy hearings to afford Andrews a full opportunity to be
heard. Among other things, Magistrate Judge Schultz explained
the proceedings and, as necessary, the law, admitted
Defendant's evidence, allowed him to fully cross-examine
the Government's witnesses, present arguments, testify,
and gave him additional time in which to raise pro se
arguments. And the magistrate judge also issued evidentiary
rulings in Andrews' favor. For example, he sustained an
objection lodged by Andrews, (Oct. 5, 2018 Hr'g Tr. at
14), and overruled an objection to one of Andrews'
questions. (Id. at 84.)
Favoring the Government
his Objections, Andrews accuses the magistrate judge of
“making objections for the Government” and
generally favoring the Government's presentations. (Objs.
at 2, 22, 56.) He cites numerous portions of the hearing
transcripts that, he argues, demonstrate this alleged
favoritism and bias. (Id. at 22) (citing Sept. 19,
2018 Hr'g Tr. at 31-32, 35-40, 42- 49, 53-56, 64, 70, 75,
85-86; Oct. 5, 2018 Hr'g Tr. at 61-64, 99-101, 140, 148,
152-54, 214.) As “the most noticeable” example,
Andrews points to a portion of the September 19, 2018 hearing
transcript, (id.), during which Andrews asked Sgt.
O'Rourke about the timing of the Government's
production of an exhibit. (Sept. 19, 2018 Hr'g Tr. at
86.) Magistrate Judge Schultz properly identified the
Government's objection as an objection to foundation,
which he also properly sustained, as the witness lacked
sufficient knowledge to answer the question:
Defendant: Can you please tell us what brought this document
about after all of these months? Because the shooting
happened May 15th, am I correct?
Sgt. O'Rourke: It was requested.
Defendant: It was requested when?
Sgt. O'Rourke: September 10th.
Gov't: That's a question he can't answer, but I
can, and I'll be ...