Opinion
CR 19-02946-TUC-JAS (LAB)
10-05-2021
United States of America, Plaintiff, v. John Milton Lee, Defendant.
REPORT AND RECOMMENDATION
HONORABLE LESLIE A. BOWMAN UNITED STATES MAGISTRATE JUDGE
The District Court referred this case to the Magistrate Judge for a hearing on the defendant's motion to enforce stipulation (Doc. 19). (Doc. 83). The defendant, John Milton Lee, provides the Court with a copy of Document 19, Stipulations Regarding Trial, and claims that the government is not in compliance with the stipulation. He implores the Court for enforce the stipulation by ordering the government to return a motorcycle (belonging to his son), a Suburban (belonging to his son), sleeping bags bag, clothing, books and bibles, non-perishable food items, items within the truck (shoes, cups, tent, etc.), Teva sandals and Canadian dollars and silver.
A hearing was held on 10/1/21. Mr. Lee provided the Court with a witness list of seven potential witnesses, but none were present for the hearing. No testimony was offered by the government or the defense. Mr. Lee submitted an exhibit list for the hearing, but no exhibits were admitted.
Page 4 of the exhibits was proffered to the Court in response to the government's statement that Mr. Lee was denied entry into Mexico for transporting a motorcycle without proper documentation. The photo was referenced to demonstrate that it was properly registered in the United States. The photo was not admitted into evidence.
Charges :
The defendant is charged in Count 1 of the indictment with smuggling goods from the United States, in violation of 18 U.S.C. § 2778 and 22 C.F.R. §§ 121.1, 123.1 and 127.1. He is charged in Count 2 with Impeding and Threatening a Federal Officer, in violation of 18 U.S.C. §§ 115(a)(1)(B) and (b)(1)(B)(iv). He is charged in Count 3 with Possession of Marijuana, in violation of 18 U.S.C. § 844. The indictment also includes a Forfeiture Allegation, pursuant to 18 U.S.C. § 924(d) and 28 U.S.C. § 2461(c).
Motion to Enforce Stipulation :
The defendant explains that he and the government came to an agreement that the items listed in the stipulation would be returned to him. In exchange, Mr. Lee would agree for purposes of trial that he was the sole occupant and driver of the Suburban on 11/1/19. He was detained by Customs and Border Patrol on that date and the listed items were confiscated from Mr. Lee. In his motion, Mr. Lee states that he signed the stipulation prior to the return of the items. On 2/19/20 he and his then attorney met in Lukeville, AZ with the understanding that the vehicles and other items would be released to him. The agents advised Mr. Lee that the Suburban was not there and was instead in Nogales, AZ and could be retrieved with 48 hours notice and a payment of $1,000.00. Mr. Lee had driven from Nevada for the meeting in Lukeville. Mr. Lee did not “have confidence that a drive to Nogales and payment would yield the truck and its contents.” Some items were returned but the vehicles and remaining items were not.
In the defendant's exhibits, pages 29 and 30 are letters between Mr. Lee and his then counsel. In the letters Mr. Lee asks counsel to be sure evidence is preserved. He asks counsel to petition the court to have CBP maintain custody of the vehicle and its contents. Mr. Lee states that “release does not mean pay fees determined by CBP.”
Although the government did not file a written response, it explained during the hearing that the government released the vehicles and their contents to a private towing and storage company. The impound lot location and storage fees were determined by the company. The government no longer has any interest in the items and has no authority over the fees and requirements that the private company imposes for release of the property to Mr. Lee. It is the government's understanding that the items included in the stipulation are still in the possession of the towing company and still available for release, subject to the fees and conditions imposed by the private company.
The Court does not have authority to order the private company to waive its fees or modify its policies. The stipulation was signed by the government, defense counsel and Mr. Lee on 1/29/20, over 20 months ago. The Court is unaware of the current location of the vehicles and items, nor of the current fees required for release. Mr. Lee is now self-represented but has advisory counsel. Perhaps Mr. Lee will allow advisory counsel to obtain additional information and assist in negotiations for release of the property.
RECOMMENDATION :
In view of the foregoing, it is recommended that, after its independent review of the record, the District Court DENY the motion to enforce the stipulation. (Doc. 83)
The defendant may serve and file written objections within 14 days. If objections are not timely filed, the party's right to de novo review may be waived. No reply to objections shall be filed unless leave is granted from the District Court.
The Clerk of the Court is directed to send a copy of this Report and Recommendation to all parties.