USA v. Ward

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
ANTHONY WARD,
Defendant.
5:22-CR-50073-JLV-01
ORDER REGARDING
MOTION OF OBJECTION (DOC 83)
Mr. Ward filed a pro se “Motion of Objection.” 	(Doc. 83). 	Because
Defendant is represented by counsel, all motions must be made through his
attorney. 	See United States v. Stanko, 491 F.3d 408, 411 n.2 (8th Cir. 2007)
(The court declines to address pro se motions when defendant is represented by
counsel); United States v. Peck, 161 F.3d 1171, 1174 n.2 (8th Cir. 1998) (It is
not the court’s “practice to consider pro se briefs filed by parties represented by
counsel”). 	Accordingly, on this basis, it is respectfully recommendation that
the “motion for objection” is denied without prejudice. 	Alternatively, the court
has reviewed the merits of the motion and for the reasons stated herein, finds
the motion of objection to be without merit.
DICUSSION
Ward raises the following issues in his “motion of objection” wherein
requests that “these objections should be place on the record.” 	(Doc. 83, p. 1).
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1. Issues not raised or challenged at the suppression hearing.
Ward raises two objections in regard to the suppression evidentiary
hearing. 	First, he states that he wished to challenge K.S. alleged “overdose
that lead to affidavit’s to [K.S.]’s phone, then to CA’s phone, then to “Low’s”1
phone and then eventually Mr. Ward’s phone.” 	Ward believes it was in error
when this matter “was touched on but not discussed” in the suppression
hearing.
By choosing to be represented by counsel, a defendant necessarily
relinquishes some control of the case to the attorney. 	Gonzalez v. United
States, 553 U.S. 242, 248-249 (2008). 	“The adversary process could not
function effectively if every tactical decision required client approval.” 	Taylor v.
Illinois, 484 U.S. 400, 418 (1988). 	“Strategic and tactical decisions should be
made by defense counsel, after consultation with the client where feasible and
appropriate.” 	American Bar Association Criminal Justice Standards for the
Defense Function, Standard 4-5.2(d) (4th ed. 2017).
The Supreme Court has recognized only four fundamental choices that a
defendant always has the right to make; those fundamental choices remaining
with the defendant are the decision “whether to plead guilty, waive a jury,
testify in his or her own behalf, or take an appeal.” 	Jones v. Barnes, 463 U.S.
745, 751 (1983); Thomas v. United States, 737 F.3d 1202, 1207 (citing United
States v. Boyd, 86 F.3d 719, 723 (7th Cir.1996) (reasoning that, aside from the
1 Testimony at the evidentiary hearing established that Ward’s co-defendant’s
nickname was “Low.”
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four fundamental decisions enumerated by the Supreme Court in Jones, all
other trial decisions are strategic decisions reserved for counsel)).
Mr. Ward is represented by Paul Andrews. 	Therefore, the decision
whether to move to challenge evidence that stems from K.S’s overdose is a
strategic and tactical decision made within his counsel's discretion.2
Furthermore, Ward lacks standing to challenge another person’s cell
phone. 	“An individual asserting Fourth Amendment rights must demonstrate
that he personally has an expectation of privacy in the [thing] searched, and
that his expectation is reasonable.” 	United States v. Russell, 847 F.3d 616,
618 (8th Cir. 2017) (citation omitted). “The defendant moving to suppress bears
the burden of proving he had a legitimate expectation of privacy that was
violated by the challenged search.” 	Id. (citation omitted). 	Ward does not argue
and nothing in the present record indicates that he has any reasonable
expectation of privacy in the contents of K.S.’s, CA’s, or “Low’s” cellphone.
Thus, he lacks standing to challenge their search.
Second, Ward raises a concern regarding an exhibit which was
introduced by the prosecutor. 	Ward’s objection arises from his concern that he
did not see this particular item of discovery, and he is unsure if his previous
attorney3 had viewed the document; however, Ward admits that his attorney
2 Evidence presented at the suppression hearing demonstrated that there is a
valid strategic reason for not pursuing these claims.
3 Ward was initially represented by attorney Jennifer Albertson. 	Ms. Albertson
filed the motion to suppress. 	Prior to the court holding and evidentiary
hearing, Ward filed a motion for replacement counsel and the court appointed
attorney Paul Andrews. 	Mr. Andrews represented Ward at the evidentiary
hearing.
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who represented him at the evidentiary hearing had seen the item of discovery.
Ward claims that he has “only gone through half of [his] discovery, and never
see this particular item of discovery.” (Doc. 83, p. 1). 	Ward claims the Court
should have asked “previous counsel Ms. Albertson if she had seen the item.”
Id.
None of these claims have merit. 	It is irrelevant if Ms. Alberton, his prior
counsel, had seen the item of discovery. 	The relevant issue under FRCP 16 is
whether Mr. Andrews, his current counsel, saw the item of discovery; Andrews
told the court that he had. 	The objections Ward raises in regard to his
suppression evidentiary hearing are overruled.
2. Pre-trial detention of the defendant.
Ward argues that he is being detained in violation of his Eighth
Amendment rights and his First Amendment rights. 	However, he fails to
provide any legal basis for the alleged violations. 	He asserts that he never had
a detention hearing. 	The record clearly establishes that a detention hearing
was held on May 4, 2022. 	During the hearing, defense counsel submitted to
detention4 in light of the fact that Ward was brought into federal custody on a
writ of habeas corpus ad prosequendum and that he had an active warrant for
pending felony charges in the state of Colorado with a $10,000 cash bond.
At the detention hearing, Ward asked for “a statutory reading of all these
counts” set out in the Indictment. 	Ward stated he wants the rights to have the
4 Because Ward submitted to detention, he was advised that he reserved the
right to come back into court at a later date and request release.
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statutes read for the record. 	Judge Wollmann advised Ward that at an initial
appearance the Federal Rules of Criminal Procedures require the Indictment be
read aloud; it is not required that the specific statutes be read aloud.
Ward asked the court whether the charges set forth in the Indictment
required his physical presence in South Dakota to commit the crimes. 	Judge
Wollmann advised that because he is charged with aiding and abetting, it is
not required that he was physical present in South Dakota. 	Ward then asked
who he was charged with aiding and abetting. 	Judge Wollman advised that
identity of the person he is charged with aiding and abetting is sealed until
they are arrested. 	Ward then asked additional questions and Judge Wollmann
stated that she is available to answer questions about statutory rights, not give
legal advice, and the questions he is asking are bordering on questions of
defense strategy; thus, the questions are more appropriate for his counsel.
In the present motion, Ward suggests the court acted out of impartiality
or bias because “it felt like the words were perjury and served the purpose for
bias. 	Which the judge has no reason to be bias, and if so has a duty to recluse
herself from Mr. Ward’s case.” 	(Doc 83, p. 2)
"Clearly established Federal law, as determined by the Supreme Court of
the United States", 28 U.S.C. § 2254(d)(1), recognizes not only actual bias, but
also the appearance of bias, as grounds for judicial disqualification:
A fair trial in a fair tribunal is a basic requirement of due process.
Fairness of course requires an absence of actual bias in the trial of
cases. 	But our system has always endeavored to prevent even the
probability of unfairness. 	To this end no man can be a judge in his
own case and no man is permitted to try cases where he has an
interest in the outcome. 	That interest cannot be defined with
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precision. 	Circumstances and relationships must be considered.
This Court has said, however, that "Every procedure which would
offer a possible temptation to the average man as a judge . . . not
to hold the balance nice, clear, and true between the State and the
accused denies the latter due process of law."
In re Murchison, 349 U. S. 133, 136 (1955) (quoting Tumey v. Ohio, 273 U.S.
510, 535 (1927)). 	Bias is easy to attribute to others and difficult to discern in
oneself. 	See Williams v. Pennsylvania, 579 U.S. 1 (2016). 	To establish an
enforceable and workable framework, the Supreme Court’s precedents apply an
objective standard that, in the usual case, avoids having to determine whether
actual bias is present. 	The Court asks not whether a judge harbors an actual,
subjective bias, but instead whether, as an objective matter, “the average judge
in his position is ‘likely’ to be neutral, or whether there is an unconstitutional
‘potential for bias.’” 	Caperton v. A. T. Massey Coal Co., 556 U. S. 868, 881
(2009) (adopting a new standard that requires recusal “when the probability of
actual bias on the part of the judge or decisionmaker is too high to be
constitutionally tolerable.” 	Id. at 872.)
“Any justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which is impartiality might reasonably
be questioned.” 	28 U.S.C. § 455(a). 	This section imposes an objective
standard, requiring a judge to determine “ ‘whether the judge’s impartiality
might reasonably be questioned by the average person on the street who knows
all the relevant facts of a case.’ “ Hammer v. Sam’s East, Inc., 754 F.3d 492,
503 (8th Cir. 2014) (quoting In re Kan. Pub. Emp. Ret. Sys., 85 F.3d 1353,
1358 (8th Cir. 1996). 	Section 455 separately lays out specific circumstances in
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which recusal is also required, including situations where a judge has a bias or
prejudice concerning a party or personal knowledge of disputed facts. 	See
U.S.C. § 455 (b)(1). 	The impartiality of a judge is presumed to exist; a party
seeking recusal bears a substantial burden to prove otherwise. 	United States
v. Denton, 434 F.3d 1104, 1111 (8th Cir. 2006).
Ward does not assert how the undersigned magistrate judge may be
biased in this case. 	Ward vaguely alludes to an assertion that the undersigned
magistrate judge has a personal bias or prejudice. 	However, he fails to cite to
any specific example or discuss the allegation further. 	Ward “must alleged
specific, non-conclusory facts showing a personal bias or prejudice against him
that emanates from an extrajudicial source as distinguished from a judicial
source, i.e. court proceedings.” 	United States v. Kirkpatrick, 2005 WL
2989314 (citing Youn v. Track Inc., 324 F.3d 409, 423 (6th Cir. 2003)).
“Adverse judicial rulings, however, ‘almost never’ constitute a valid basis or
recusal; the proper recourse for a dissatisfied litigant is appeal.” 	Dosset v.
First State Bank, 399 F.3d 940, 953 (8th Cir. 2005). 	The court does not have
any firsthand knowledge of the facts of the case nor any personal knowledge of
Ward other than through the formal pleadings and court proceedings in this
case. 	There is no reason to believe that the undersigned magistrate judge has
an actual bias, an appearance of bias or an objective unconstitutional potential
for bias. 	Therefore, this claim is without merit.
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3. Discovery requests
Ward argues that the material requested in his previously filed motion for
discovery (Doc. 82) is relevant to suppression issue and they should be
provided before final briefing is concluded. 	Ward also argues that the court
should hold a hearing to allow Ward question law enforcement on the discovery
materials.
The court has denied Ward’s motion for discovery, without consideration
of the merits of the motion.5 (Doc. 93). 	In the motion for discovery, Ward
requests the personnel files of the officers involved with the investigation,
operational procedural manuals of the FBI, DCI, and Highway Patrol, current
accreditation records of the officers, and all photos and recordings including
actual traffic violation related to traffic stop and investigation.
During the evidentiary hearing, photos and video pertaining to the traffic
stop where introduced into evidence. 	Ward had the opportunity to cross
examine the witnesses in relation to these materials. 	Ward’s objection as it
pertains to photos and videos is overruled. 	As it pertains to the personnel
files/accreditation files and manuals, there is not enough information to rule
on the discoverability of these materials as there has not been a showing that
these materials are relevant to the case.
“The baseline rule is that a criminal defendant has no absolute or
presumptive right to insist that the district court take testimony on every
5 Ward failed to file the certification as required under D.S.D. Crim. LR 16 prior
to filing a discovery motion.
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motion.” 	United States v. Schwarting, 14-CR-50100-JLV (D.S.D. 2018) (Doc.
293) (internal quotation omitted). 	“An evidentiary hearing on a motion need be
held only when the moving papers allege facts with sufficient definiteness,
clarity, and specificity to enable the court to conclude that contested issues of
fact exist.” 	Id. (internal quotation omitted). 	Here, Ward did not meet his
burden of showing that the evidentiary hearing should be reopened.
CONCLUSION
For the foregoing reasons, Mr. Ward’s objections (Doc. 83) are overruled.
NOTICE OF RIGHT TO APPEAL
Pursuant to 28 U.S.C. § 636(b)(1)(A), any party may seek reconsideration
of this order before the district court upon a showing that the order is clearly
erroneous or contrary to law. 	The parties have fourteen (14) days after service
of this order to file written objections pursuant to 28 U.S.C. § 636(b)(1)(A),
unless an extension of time for good cause is obtained. 	See FED. R. CRIM. P.
58(g)(2); 59(a). 	Failure to file timely objections will result in the waiver of the
right to appeal questions of fact. 	FED. R. CRIM. P. 59(a). 	Objections must be
timely and specific in order to require review by the district court.
DATED this 24th day of January, 2023.
BY THE COURT:
DANETA WOLLMANN
United States Magistrate Judge
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