United States District Court, D. Minnesota
K. Bell, Assistant United States Attorney, United States
Attorney's Office, Minneapolis, MN, on behalf of
S. Garvis, Esq., Koch & Garvis, LLC, Minneapolis, MN, on
behalf of Defendant.
Frederick Barnes, Pro Se.
MONTGOMERY U.S. DISTRICT JUDGE
matter is before the undersigned United States District Judge
for a ruling on Defendant Dwight Frederick Barnes'
(“Barnes”) Objections [Docket Nos. 92 and
99] to Magistrate Judge Katherine M.
Menendez's April 8, 2019 Report & Recommendation
(“R&R”) [Docket No. 80]. In the R&R,
Judge Menendez recommended denying Barnes' motions to
suppress evidence obtained during execution of several search
warrants and a warrantless arrest [Docket Nos. 43, 51], and
deny Barnes' motion to dismiss the Indictment [Docket No.
49]. Also before the Court is Barnes' Pro Se Motion to
Dismiss Indictment Pursuant to Rules 16(d)(2)(D) and
12(b)(3)(E) [Docket No. 81], and his Pro Se Amended Motion to
Dismiss the Indictment [Docket No. 105].
reviewing a magistrate judge's report and recommendation,
the district court “shall make a de novo determination
of those portions of the report or specified proposed
findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1)(C); see also
D. Minn. L.R. 72.2(b). A district judge “may accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.”
Menendez's recitation of the factual background of this
case is thorough and will not be repeated here, but rather is
incorporated by reference. Barnes challenges the validity of
several search warrants. Barnes then argues his warrantless
arrest was without probable cause. Finally, he seeks
dismissal of the Indictment for claimed due process
violations. After de novo review, the Court adopts the
R&R's findings and conclusions.
Barnes argues the police did not have probable cause for two
pen register, trap and trace, and tracking warrants. For the
second of the two, Barnes also argues that the affidavit for
the warrant included serious misstatements rendering the
first tracking warrant was for a phone number ending in -9283
(the “-9283 warrant”). Barnes argues the
confidential informant statements underlying the -9283
warrant may have been reciprocally corroborative, but the
information from those statements was more vague than cases
cited by the R&R. Barnes contends the informants'
statements, taken together, do not lead to probable cause of
illegal activity. In particular, Barnes argues that the
R&R's citation to United States v. Fulgham,
143 F.3d 399, 401 (8th Cir. 1998) was misapplied to the total
circumstances surrounding issuance of the -9283 warrant. The
Court disagrees. The police in this case received information
from three informants, which was one more corroborating
informant than in Fulgham. And, just like in
Fulgham, one informant had previously provided
reliable information. Here, the two additional informants
provided reciprocally corroborative information and further
specific details, including the actual cell phone number of
the suspect. The police were permitted to rely on this
information because the other information provided by two
untested informants aligned with the previously reliable
informant. See Fulgham, 143 F.3d at 401; see
also United States v. Buchanan, 574 F.3d 554, 562 (8th
Cir. 2009) (“Even the corroboration of minor, innocent
details can suffice to establish probable cause.”).
Additionally, the police were not relying on the information
from the confidential informants alone. As the R&R makes
clear, the police were familiar with Barnes and had
independent knowledge of details that corroborated
information shared by the informants. The police had
established probable cause to track and trace Barnes'
-9283 phone number. The R&R also appropriately applied
the Leon good faith exception, finding that even had
the -9283 warrant been based on insufficient showing of
probable cause, the good faith exception would nonetheless
preclude suppression. United States v. Leon, 468
U.S. 897, 920 (1984).
argues that the warrant ending in -4603 (the “ -4603
warrant”) is flawed because it appears the police
copied and pasted much of the language of the -9283 warrant
into the -4603 warrant. As explained above, the confidential
informants' information coupled with independent police
work was sufficient to establish probable cause. Furthermore,
Barnes argues that the informant information was stale before
issuance of the -4603 warrant. Police were investigating
Barnes for ongoing drug trafficking activity; the information
relied on to issue the -4603 warrant was not stale. See
United States v. Formaro, 152 F.3d 768, 771 (8th Cir.
1998). Because of the copied and pasted information in the
-4603 warrant application, Barnes requests a Franks
hearing. Franks v. Delaware, 438 U.S. 154, 171
(1978) (permitting an evidentiary hearing to determine if an
affidavit submitted in support of a warrant was submitted in
bad faith). As the R&R properly analyzed, if the
“defendant has met the threshold showing for a
Franks hearing, the court must examine the affidavit
with the false information corrected or excised, or the
omitted information included.” R&R at 14.
“The revised warrant is invalid and the fruits of the
search must be suppressed if the corrected application fails
to establish probable cause.” Id. Here, the
affidavit provides sufficient probable cause for the issuance
of a pen register, trap and trace, and tracking warrant. Of
note, the warrant was directed to collecting location and
call data, not the content of communications made on the
phone. The police requested only the information needed and
supported by probable cause and did not inappropriately
expand the warrant beyond the basis supported by their
investigation. As with the -9283 warrant, the Leon
good faith exception would preclude suppression, especially
in light of the Franks doctrine.
also argues that the warrants for his email accounts were
overbroad. The Court adopts the analysis of the R&R.
Barnes' Objections do not expand or differ substantially
from what was presented to Judge Menendez and the Court
agrees with the R&R's findings.
the R&R thoroughly addresses the procedural deficiencies
in the delay in returning the Wells Fargo warrant for
Barnes' financial records. After executing the warrant,
Federal Rules of Criminal Procedure require the executing
officer to “promptly return” the warrant, along
with an inventory of items seized, to a designated magistrate
judge. The Minnesota Statute Section 626.17 requires
“immediate return.” The police investigators did
not do this. As a remedy, the court may suppress the
fruits of the search “if the defendant is prejudiced or
if reckless disregard of proper procedure is evident.”
United States v. Beckmann, 786 F.3d 672, 680 (8th
Cir. 2015). Barnes has not shown prejudice or reckless
disregard. In his pro se objections, Barnes accuses the
government and the magistrate judge of vindictive prosecution
and of writing the warrant post hoc. Barnes does not support
his accusations with credible evidence. Barnes did not
address the issue of prejudice to the preparation of his
defense, and the Court agrees with the R&R that no
also challenges his warrantless arrest, arguing that officers
did not have probable cause to arrest him on October 20,
2017. The Court agrees with the R&R's assessment of
the facts known to the police at the time of the arrest.
“There is no doubt that the arresting officers had
probable cause to believe a criminal offense had been or was
being committed.” R&R at 21.
also objects to the federal government indicting him on
federal criminal charges when he had been defending against
similar allegations in state court. In an amended motion to
dismiss, Barnes raises due process arguments of double
jeopardy and vindictive prosecution. Under current governing
case law, the R&R rightly concludes that Barnes is not
facing double jeopardy here, where, before a state
conviction, the federal government decides to indict and
prosecute a defendant for federal criminal violations.
R&R at 23. In this case, because the federal government
may appropriately remove a defendant from state criminal
proceedings before conviction in order to pursue federal