USA v. Flying Horse et al

OCR transcription for search; preserved printed pages are authoritative

Case 5:20-cr-50035-KES Document 265 Filed 07/21/21 Page 1 of 7 PagelD #: <pagelD>

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

WESTERN DIVISION

UNITED STATES OF AMERICA, 5:20-CR-50035-JLV-01
Plaintiff,
ORDER DENYING DEFENDANT’S
vs. MOTIONS FOR RETURN OF
PROPERTY

JOSEPH FLYING HORSE,
Defendant.

Pending are Defendant’s Motions for Return of Property (Doc. 93, 155,
188, 199, 211, 216, 231). Based on a careful consideration of the relevant
pleadings, the Court denies the motions for the reasons stated herein.

JURISDICTION

Defendant is charged in an Indictment with Possession of a Stolen
Firearm in violation of 18 U.S.C. §§ 922(j) and 924(a)(2) and Possession of a
Firearm While Under Indictment in violation of 18 U.S.C. §§ 922(n) and
924(a)(1)(D). The pending Motions were referred to the Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1)(B) and United States District Judge Jeffrey L.

Viken’s Standing Order dated April 1, 2018.

FACTUAL BACKGROUND

The defendant has filed numerous motions for return of property, each
with its own set of relevant facts. As such, the facts pertaining to each motion

will be discussed in its respective section.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

Case 5:20-cr-50035-KES Document 265 Filed 07/21/21 Page 2 of 7 PagelD #: <pagelD>

DISCUSSION

FED. R. CRIM. P. 41(g) requires the movant to show he is entitled to
lawfully possess the property at issue, id., and that the Government has or had

possession of the property, United States v. Bailey, 407 F. App’x 74, 75 (8th Cir.

2011). “Ifa factual dispute as to who has custody of the property or who is
entitled to possession arises, “the court must hold a hearing to determine those

issues.”” United States v. Howard, 973 F.3d 892, 894 (8th Cir. 2020) (quoting

United States v. Timley, 443 F.3d 615, 625 (8th Cir. 2006).

For purposes of possession, the government will be found to have
possession if they have either actual or constructive possession of the property
at issue. “To constructively possess seized property... the Government must
either 1) consider the property as evidence in a federal prosecution or 2) direct
state officials to seize the property as agents of federal authorities.” Id. (citing

Clymore v. United States, 164 F.3d 569, 571 (10th Cir. 1999).

A. First Motion for Return of Property (Doc. 93)

The defendant argues that on the date of his arrest, May 22, 2020, his
vehicle, a maroon 1999 GMC Yukon Denali Sport, was towed at the request of
either the U.S. Marshall or one of the two arresting Pennington County
Sherriff’s Deputies. (Doc. 93),

The Government filed a response to this Motion on August 20, 2020. The
Government argues no vehicle has been seized by the United States as part of
these proceedings against the defendant, and the Motion should be denied as

moot. (Doc. 96).

Case 5:20-cr-50035-KES Document 265 Filed 07/21/21 Page 3 of 7 PagelD #: <pagelD>

The Court has not found, and the defendant has failed to point to
anything in the record that the United States has either actual or constructive
possession of the property at issue. If the defendant would like to provide
additional evidence in support of his request, or request an evidentiary hearing,
he may do so. At this time, however, the defendant has not met his burden of
proving the Government is in actual or constructive possession of a maroon
1999 GMC Yukon Denali Sport owned by the Defendant. Therefore, the
defendant’s First Motion for Return of Property is denied without prejudice.

B. Demand For Return of Property (Doc. 155)

The defendant argues for the return of items listed on an evidence
inventory and receipt list from the South Dakota Division of Criminal
Investigation. (Doc. 155-1). He asks for the return of a Motorola cell phone
and several DeWalt tools and bolt cutters. (Doc. 155). The defendant claims
the items were stolen from him and then found by law enforcement in a
crashed vehicle at “Mt, Carmel and Cabot Hill Road” on April 25, 2020, (Doc.
155). He states that these items, too, are being held as evidence by the South
Dakota Division of Criminal Investigation. The items appear to be held in the

case of State v. Looking Back, Case No. PCR20-204891. (Doc. 155-1)

“Generally, a Rule 41(e)! motion is properly denied if the defendant is not
entitled to lawful possession of the seized property, the property is contraband

or subject to forfeiture or the government's need for the property as evidence

1 In 2002, the substance of Rule 41(e) was moved to Rule 41(g), without any
changes.

Case 5:20-cr-50035-KES Document 265 Filed 07/21/21 Page 4 of 7 PagelD #: <pagelD>

continues.” U.S. v. Vanhorn, 296 F.3d 713, 719 (8 Cir. 2002) (citing United

States v. Mills, 991 F.2d 609, 612 (9% Cir. 1993).

Upon defendant’s own admission, which is supported by the documents
attached to the defendant’s motion (See Doc. 155-1), the items requested are
being held as evidence in a pending case. Therefore, the defendant has not met
his burden of proving he is entitled to the return of these items, and his
Demand for Return of Property is denied.

C. Second Motion for Return of Property (Doc. 188)

The defendant reiterates his arguments set forth in his demand for
return of property (Doc. 155), relating to the return of items on an evidence
inventory log, a Motorola cell phone, and several DeWalt tools and bolt cutters,
and his 12t request for judicial notice (Doc. 173), relating to two firearms he
purchased in jail from two other Pennington County Jail inmates.

Here, as above, the items listed are being held as evidence by the state
government. They are therefore not eligible for return to the defendant.
Additionally, the defendant is not entitled to lawfully possess the firearms
mentioned in his Twelfth Request for Judicial Notice,

Under federal law, a person convicted of a felony is not entitled to
possess a firearm. See 18 U.S.C. 922(g). Because the defendant has been
convicted of a felony (See Case No.: 51C09002789A0; Doc. 5), he is not entitled

to lawfully possess either of the requested firearms. See U.S. v. Felici, 208,

F.3d 667 (8 Cir. 2000) (“Based upon [defendant]'s status as a convicted felon,

Case 5:20-cr-50035-KES Document 265 Filed 07/21/21 Page 5 of 7 PagelD #: <pagelD>

the district court could properly conclude without receiving evidence that
[defendant] is not entitled to a return of the firearms.”)

Additionally, the defendant’s argument in his 2™4 footnote that the
firearms could instead be returned to his wife, Toni Flying Horse, or his
daughter in law, Shelaylah Steele, is also without merit. Id. (“[Defendant| is
also not entitled to have the firearms held in trust for him by a third
party. Such a request suggests constructive possession. Any firearm
possession, actual or constructive, by a convicted felon is prohibited by law.”)
As such, the defendant’s Second Motion for Return of Property is denied.

D. Third Motion for Return of Property (Doc. 199)

The defendant argues for the return of a CZ, model 52, 7.62x25 caliber
semi-automatic pistol, it’s magazine, and 5 bullets that were seized from a
white Ford Expedition on September 4, 2020. He also states he placed these
items in the vehicle prior to his arrest on May 22, 2020 for “later retrieval.”
(Doc. 199). Mr. Flying Horse states items were seized in the criminal case of

United States v. Jesse Warbonnett (5:20-cr-50132).

As stated above in section 3, the defendant is not entitled to lawfully
possess a firearm, nor is he allowed to have anyone else receive the firearm for
him. Additionally, the items continue to be held as evidence in an ongoing
criminal case. Therefore, the defendant’s Third Motion for Return of Property is

denied.

Case 5:20-cr-50035-KES Document 265 Filed 07/21/21 Page 6 of 7 PagelD #: <pagelD>

E. Fourth Motion for Return of Property (Doc. 211)
The defendant argues for the return of a Smith and Wesson, model 586,
.3857 Magnum caliber double-action revolver and ammunition for the firearm
that he purchased from Isaiah Cross White, another inmate in the Pennington
County jail. He also states this firearm was seized in the pending criminal case

of United States v. Isaiah Cross White (5:20-cr-50108),

As the firearm was seized and is being held as evidence in an ongoing
criminal case, the defendant is not entitled to return of the firearm.
Additionally, as stated above in section 3, the defendant is not entitled to
lawfully possess a firearm, nor is he allowed to have anyone else receive the
firearm for him. Therefore, the defendant’s Fourth Motion for Return of
Property is denied.

F. Fifth Motion for Return of Property (Doc. 216)

The defendant argues for the return of a Lugar, model SR9, 9 mm semi
automatic pistol that he purchased from Lester Waters, Jr., another inmate in
the Pennington County jail. He also states that this firearm was seized from

Mr. Waters in the closed criminal case of United States v. Waters (5:18-cr-

50015)
As stated above in section 3, the defendant is not entitled to lawfully
possess a firearm, nor is he allowed to have anyone else receive the firearm for

him. Therefore, the defendant’s Fifth Motion for Return of Property is denied.

Case 5:20-cr-50035-KES Document 265 Filed 07/21/21 Page 7 of 7 PagelD #: <pagelD>

G. Sixth Motion for Return of Property (Doc. 231)
The defendant argues that on February 11, 2021, another inmate at the
Pennington County Jail, Justin Johnson, transferred to him a sum of $32,630
in exchange for his “services rendered.” (Doc. 231). He also states that this

money was seized from Mr. Johnson in the state court case of State v. $32, 630

in American Currency, No, 51CIV18-001475, and is therefore in the possession

of state authorities. He also argues the state was acting as a “tool” of the
federal government, and therefore the federal government has constructive

possession of the property. Id, citing Bartkus v. People of the State of Illinois,

359 U.S. 121, 123-24 (1959). However, the court need not determine whether
the Government has constructive possession of the property, because the
defendant is not entitled to lawfully possess the property at issue.

Here, again, the property at issue was seized as part a criminal
investigation and is being held as evidence in an ongoing criminal case.
Additionally, as these funds were seized in connection to an alleged drug
conspiracy, if Mr. Johnson is convicted, there is a high likelihood these funds
will be contraband and subject to forfeiture. Therefore, the defendant’s Sixth

Motion for Return of Property is denied.

DATED this s* of July, 2021.
BY THE COURT:

DANETA WOLLMANN
United States Magistrate Judge