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 dismiss all charges after discovery of additional evidence. (Doc. 76) The defendant moves the Court to elicit testimony from three of the government's potential witnesses. If their answers are favorable to the defense, Mr. Lee asks the Court to dismiss all counts in the indictment.
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 Dismiss All Charges after Discovery of Additional Evidence :
The defendant's motion explains that he wants the Court to ask three questions of Officers Britt, Church and Smith. Question one is whether the officers agreed not to touch Mr. Lee during the encounter. Question two is whether the officers asked Mr. Lee to step out of the vehicle before Agent Smith forcibly removed Mr. Lee from the vehicle. Question three asks the Court to inquire whether Mr. Lee made the threatening statement alleged in Count 2 of the indictment, “you don't want some of this, while grasping and reaching for a deadly weapon.” Mr. Lee cites no legal authority to support his request of the Court.
In its response (Doc. 84), the government agrees with the defendant that there is an audio recording of the encounter. The recording has been disclosed to the defendant but was not offered into evidence during the hearing. The government's position is that the three questions are not relevant to the charges against Mr. Lee. If excessive force was used during the arrest, the remedy would be to file a civil suit. It explains that the proper way to challenge the evidence in this case is during trial through presentation of evidence and cross-examination of the government's witnesses.
Mr Lee replies (Doc. 91) that all evidence claimed to be seized by the government from his vehicle is legal in the State of Arizona, ie. firearms and marijuana. The issue is the manner of collection of the evidence, which Mr. Lee claims was through “violence and unwarranted, illegal force used against a citizen of the State of Arizona.” He argues that if the full audio and video are presented to a jury it “would nullify the law to protect all of us from such abuse of authority.”
The defendant claims that the court stated, “Don't ask about the audio”. He also claims that he hasn't seen the video or heard the audio because of “the word of the court.” It is unclear what the defendant is referring to or why he believes that to be true.
The Court concludes that there is no authority to support dismissal of the charges. There is no evidence to support a claim that the government is not complying with its disclosure obligations or has engaged in any misconduct that would require the extreme sanction of dismissal.
RECOMMENDATION :
In view of the foregoing, it is recommended that, after its independent review of the record, the District Court DENY the motion to dismiss all charges after discovery of additional evidence. (Doc. 76)
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.