USA v. Flying Horse et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JOSEPH FLYING HORSE,
Defendant.
CR. 20-50035-01-JLV
ORDER
TABLE OF CONTENTS
I. 	Introduction 	.................................................................................. 2
II. 	Analysis of the Speedy Trial Act ..................................................... 2
A. 	Facts ........................................................................ 5
B. 	Magistrate Judge’s R&Rs, Orders, Defendant’s
Objections and Subsequent Motions ....................... 24
C. 	Resolution of the Speedy Trial Act Claims ................ 29
III. 	Sixth Amendment 	....................................................................... 33
A. 	Length of Delay ........................................................ 34
B. 	Reasons for Delay .................................................... 34
C. 	Assertion of Speedy Trial Right................................. 35
D. 	Prejudice.................................................................. 35
E. 	Resolution of the Sixth Amendment Claims .............. 37
IV. 	Defendant’s Objections to Reports and Recommendations ............ 37
A. 	Objection to Document 258...................................... 38
B. 	Objection to Document 259...................................... 39
C. 	Objection to Document 261 	.................................... 40
D. 	Objection to Document 264...................................... 40
E. 	Objection to Document 325...................................... 44
V. 	Defendant’s Objections to Orders ................................................ 45
A. 	Objections to Document 262 	.................................. 45
B. 	Objections to Document 263 	.................................. 46
C. 	Objections to Document 265 	.................................. 48
D. 	Objections to Document 266 	.................................. 50
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E. 	Objections to Document 269 	.................................. 53
F. 	Objections to Document 326 	.................................. 54
G. 	Objection to Document 328 	.................................... 55
H. 	Objection to Document 329 	.................................... 56
VI. 	Tenth Motion to Dismiss ............................................................ 57
VII. 	Order........................................................................................... 58
I. INTRODUCTION
Defendant Joseph Flying Horse, appearing pro se, filed five objections to
reports and recommendations and eight objections to orders of the magistrate
judge. 	Defendant also filed a tenth motion to dismiss the indictment. 	For the
reasons stated below, defendant’s objections are overruled and the tenth motion
to dismiss is denied.
II. ANALYSIS OF THE SPEEDY TRIAL ACT
The Speedy Trial Act, 18 U.S.C. § 3161, et seq., (“STA”) provides, in part,
“the trial of a defendant charged in an . . . indictment . . . shall commence within
seventy days from the filing date (and making public) of the . . . indictment, or
from the date the defendant has appeared before a judicial officer of the court in
which such charge is pending, whichever date last occurs . . . .” 	Id.
§ 3161(c)(1). 	Excluded from this time requirement are a number of events and
activities. 	See 18 U.S.C. § 3161(h). 	Subsection (h) provides, in pertinent part,
the following:
The following periods of delay shall be excluded . . . in computing the
time within which the trial of any such offense must commence:
(1) Any period of delay resulting from other proceedings concerning
the defendant, including but not limited to . . .
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(C) delay resulting from any interlocutory appeal;
(D) delay resulting from any pretrial motion, from the
filing 	of 	the 	motion 	through 	the 	conclusion 	of 	the
hearing on, or other prompt disposition of, such motion;
. . .
(H) delay reasonably attributable to any period, not to
exceed 	thirty 	days, 	during 	which 	any 	proceeding
concerning the defendant is actually under advisement
by the court.
Id. 	Other provisions within subsection (h) which exclude days from the speedy
trial clock and are pertinent to this case provide as follows:
(6) 	A reasonable period of delay when the defendant is joined for
trial with a codefendant as to whom the time for trial has not
run and no motion for severance has been granted.
(7)(A) Any period of delay resulting from a continuance granted by
any judge on his own motion or at the request of the defendant
or 	his 	counsel 	or 	at 	the 	request 	of 	the 	attorney 	for 	the
Government, if the judge granted such continuance on the
basis of his findings that the ends of justice served by taking
such action outweigh the best interest of the public and the
defendant in a speedy trial.
18 U.S.C. §§ 3161(h)(6) & (7)(A).
Subsection (c)(1) determines when the speedy trial clock begins and
subsection (h) sets forth those events or activities which pause or toll the clock.
See United States v. Leone, 823 F.2d 246, 249 (8th Cir. 1987) (“Section 3161(c)(1)
. . . is unambiguous in stating that upon an initial indictment, the seventy-day
clock begins to run upon the later of either (1) the . . . indictment, or (2) the
defendant’s appearance before a judicial officer of the court. 	Section 3161(h) of
the Act sets out several periods of delay which shall be excluded from the
running of the seventy-day period.”). 	Only those days not excludable under
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subsection (h) count against the defendant’s STA right of trial within seventy
days.
“[E]very motion filed by a defendant, whether or not it is frivolous and
whether or not he is represented at the time of filing, tolls the speedy trial clock.”
United States v. El-Alamin, 574 F.3d 915, 923 (8th Cir. 2009) (citing United
States v. Williams, 557 F.3d 943, 952 (8th Cir. 2009)). 	“Periods of delay caused
by pretrial motions, whether filed by the defendant . . . or the prosecution, are
excluded from the calculation of this 70-day time frame.” 	United States v.
Shepard, 462 F.3d 847, 863 (8th Cir. 2006). 	“Under subsection [D], ‘[a]ny
pretrial motion . . . creates excludable time, even if it does not in fact delay
trial.’ ” 	United States v. Titlbach, 339 F.3d 692, 698 (8th Cir. 2003) (internal
citation omitted). 	Finally, it must be remembered that “[t]he period of
excludable delay resulting from the . . . motion includes both the date on which
the motion was filed and the date on which the motion was decided.” 	United
States v. Moses, 15 F.3d 774, 777 (8th Cir. 1994).
In a multi-defendant case, “[e]xclusions of time attributable to one
defendant apply to all codefendants.” 	United States v. Mallett, 751 F.3d 907,
911 (8th Cir. 2014) (internal quotation marks omitted). 	Any motion by a
codefendant stops the STA clock for all of the codefendants. 	Id.
The defendant has the burden to show his motion to dismiss pursuant to
the STA should be granted. 	United States v. Adejumo, 772 F.3d 513, 521 (8th
Cir. 2014). 	“If a defendant is not brought to trial within the time limit
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required by section 3161(c) as extended by [the excluded delays of] section
3161(h), the . . . indictment shall be dismissed on motion of the
defendant.” 	United States v. Blankenship, 67 F.3d 673, 675 (8th Cir.
1995) (citing 18 U.S.C. § 3162(a)(2)).
A. 	FACTS
With this explanation the court begins its statement of the facts in Mr.
Flying Horse’s case for consideration of defendant’s motion to dismiss under the
Speedy Trial Act and the Sixth Amendment. 	(Docket 250). 	Specific
applications of the STA will be provided where appropriate.
Mr. Flying Horse together with four codefendants were charged in a
multi-count complaint on May 20, 2020. 	(Docket 1). 	Mr. Flying Horse was
charged in count I with possession of a stolen firearm, a SIG Sauer Incorporated,
model SIG516, 5.56 caliber, semi-automatic rifle, bearing serial number
20G003975 and a SIG Sauer Incorporated, model Sig MCX, 5.56 caliber
semi-automatic rifle bearing serial number 63C029873 in violation of 18 U.S.C.
§§ 922(j) and 924(a)(2) and in count III he was charged with possession of
firearms, the same two firearms described in count I, while under indictment in
violation of 18 U.S.C. §§ 922(n) and 924(a)(1)(D). 	Id. at p. 1.
On May 26, 2020, Mr. Flying Horse appeared before United States
Magistrate Judge Daneta Wollmann for an initial appearance and detention
hearing. 	(Docket 6). 	An Assistant Federal Public Defender for the Districts of
South Dakota and North Dakota was appointed to represent Mr. Flying Horse.
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Id. 	The magistrate judge ordered Mr. Flying Horse detained pending a
preliminary hearing. 	(Docket 7). 	On June 3, 2020, the magistrate judge
considered the evidence presented during the preliminary hearing and entered a
finding of probable cause. 	(Dockets 18 & 20).
On June 11, 2020, Mr. Flying Horse filed a pro se motion seeking new
counsel. 	(Docket 25). 	The same day, a grand jury charged Mr. Flying Horse
and his four codefendants in a multi-count indictment. 	(Docket 26). 	Mr.
Flying Horse was indicted in count I and count V with the same two offenses
charged in the complaint. 	Id. at pp. 1 & 3.
On June 17, 2020, the magistrate judge held an ex parte hearing on Mr.
Flying Horse’s motion for new counsel. 	(Docket 28). 	During the hearing, the
defendant requested permission to proceed on a pro se basis as opposed to
asking for a new attorney. 	Id. 	The magistrate judge conducted a Faretta1
hearing, concluded Mr. Flying Horse was qualified to proceed on a pro se basis
and denied the earlier motion for new counsel.2 	Id. 	The same day in a separate
hearing with government counsel present, Mr. Flying Horse was arraigned on the
indictment. 	(Docket 29). 	Mr. Flying Horse’s speedy trial clock started on this
date. 	Leone, 823 F.2d at 249.
Two days later on June 19, 2020, codefendant Aloysius Brave Hawk was
arraigned on the indictment. 	His arraignment restarted the STA clock for both
1 Faretta v. California, 422 U.S. 806 (1975).
2 An order permitting Mr. Flying Horse to proceed on a pro se basis was
entered on June 24, 2020. 	(Docket 39).
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defendants at 70 days. 	“Where multiple defendants are joined for trial and no
motion for severance has been granted, the statutory time period does not begin
to run until the last codefendant has been . . . arraigned[.]” 	United States v.
Patterson, 140 F.3d 767, 772 (8th Cir. 1998).
On June 26, 2020, codefendant Keith Looking Brave was arraigned on the
indictment. 	His arraignment restarted the STA clock at 70 days for all three
defendants. 	Patterson, 140 F.3d at 772.
On July 2, 2020, Mr. Flying Horse filed a motion to dismiss counts I and V
of the indictment. 	(Docket 51). 	While Mr. Flying Horse’s motion is pending,
the STA is paused or tolled. 	18 U.S.C. §3161(h)(1)(D). 	On July 6, 2020, Mr.
Flying Horse filed a motion for a hearing on his motion to dismiss. 	(Docket 53).
On July 13, 2020, Mr. Looking Back filed a motion for a continuance.
(Docket 58). 	On July 20, 2020, the court granted Mr. Looking Back’s motion.
(Docket 63). 	While the STA clock was already paused because of Mr. Flying
Horse’s motion to dismiss, Docket 51, the order found “[t]he period of delay
resulting from this continuance is excluded in computing the time within which
the trial of the case must commence.” 	(Docket 63 at p. 3) (referencing 18 U.S.C.
§ 3161(h)(7)(A)). 	Based on the order, the STA clock was stopped for all three
defendants until September 29, 2020, the new trial date. 	Id.; Mallett, 751 F.3d
at 911.
On July 14, 2020, the magistrate judge ordered the government to file a
response to Mr. Flying Horse’s motion to dismiss by July 20, 2020. 	(Docket 59).
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The same day, the government filed a motion for extension of time to file a
response to Mr. Flying Horse’s motion to dismiss. 	(Docket 60). 	In its motion,
the government represented to the court that because the case was sealed the
government “was unaware [Mr. Flying Horse’s] motion had been filed until
contacted by the Court.” 	Id. 	On July 15, 2020, the magistrate judge granted
the government’s motion.3 	(Docket 61). 	On July 16, 2020, the government
filed its response to the defendant’s motion to dismiss. 	(Docket 62).
On July 20, 2020, Mr. Flying Horse filed a “letter for default judgment” on
his motion to dismiss. 	(Docket 64). 	His motion claimed the government failed
to timely file a response to the motion to dismiss, making his motion
“un-opposed.” 	Id. (emphasis omitted). 	Three days later on July 23, 2020, Mr.
Flying Horse filed a response in opposition to the government’s motion for
extension of time. 	(Docket 66). 	He claims the government’s justification for an
extension to file a response was incorrect because Mr. Flying Horse had
personally served a copy of the motion to dismiss by mail. 	Id. at p. 1
(referencing Docket 51 at p. 2).
On July 21, 2020, Mr. Flying Horse filed a motion to suppress. 	(Docket
65). 	The motion sought suppression of “the video-footage brought against
Defendant on June 3, 2020, at the preliminary hearing . . . on the ground that at
said hearing . . . Plaintiff failed to properly lay foundation for how it obtained said
3 It was an accurate conclusion by the magistrate judge that the
government stated a proper basis for seeking an extension of time within which
to file a response to defendant’s motion to dismiss. 	28 U.S.C. § 636(b)(1)(A).
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footage; claiming the video was taken from who they believed to be Defendant’s
cell-phone.” 	Id. (emphasis omitted). 	Mr. Flying Horse claimed the cell phone
did not belong to him and the government did not have a search warrant. 	Id.
On July 24, 2020, the government filed a motion seeking an extension of
time to file its response to defendant’s motion to suppress. 	(Docket 67). 	On
July 27, 2020, the magistrate judge granted the government’s motion. 	(Docket
68). 	The same day, Mr. Flying Horse filed a notice of his intention to file an
objection to the July 14, 2020, order. 	(Docket 70) (referencing Docket 59).
On July 28, 2020, Mr. Flying Horse filed a motion to strike the
government’s motion for an extension of time. 	(Docket 73) (referencing Docket
67). 	In the alternative, Mr. Flying Horse moved the court to strike the
government’s response in opposition to defendant’s motion to dismiss and
motion for default. 	Id. 	He asserted as the basis for his motions that the
government “failed to seek leave of the court before filing . . . its untimely
documents.” 	Id. (emphasis omitted).
On July 28, 2020, Mr. Flying Horse also filed three requests for judicial
notice. 	(Dockets 74-76).4 	Among other things, the first request for judicial
notice asserted (1) Mr. Flying Horse is a sovereign; (2) the court does not have
personal jurisdiction over him; and (3) he is being unconstitutionally denied his
freedom and liberty. 	(Docket 74 at p. 1).
4 The content of defendant’s first three requests for judicial notice are
summarized in the order addressing the first nineteen requests for judicial
notice. 	(Docket 263 at pp. 4-7).
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The second request for judicial notice is in essence Mr. Flying Horse’s
supplemental arguments addressing matters previously ruled on by the
magistrate judge.5 	(Docket 75). 	In the second request, Mr. Flying Horse
justifies his acquisition of the firearms which are the subject of the counts of the
indictment against him.
[I]n order to give clarity and understanding as to why defendant
sought to acquire firearms (“guns”) is because of the Covid-19
pandemic; whereas he wanted to be prepared to defend his family,
friends and loved ones from any and all hostile actions and/or
threats that should/could be made against them, their home(s)
and/or their lives, due to what at the time seemed to be coming a
very probable shortage of resources of all types; whereas, such
scenerio(s) [sic] is/are set forth and reflected in the AMC television
series, 	“The 	Walking 	Dead.” 	Thus, 	this 	type 	of 	action(s) 	that
defendant is preparing for and intended to take/make are protected
and guaranteed to him pursuant to the Second Amendment of the
United States Constitution.
Id. at p. 2 (emphasis omitted).
The third request was yet another legal argument in opposition to
defendant Looking Back’s motion for continuance.6 	(Docket 76). 	Because Mr.
Flying Horse is proceeding pro se and can only view filings in the court record on
a scheduled basis, he asserted his “due process rights concerning notice and an
opportunity to be heard were not protected; and . . . he is now unfairly
prejudiced, at least thrice, where the newly scheduled trial date of September 29,
5 See Docket 263 at pp. 5-6.
6 See footnote 4; Docket 263 at p. 7.
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2020, unfairly extends his detention and confinement within the [Pennington
County Jail].”7 	Id. at pp. 1-2.
On July 28, 2020, Mr. Flying Horse filed a notice of interlocutory appeal to
the United States Court of Appeals for the Eighth Circuit. 	(Docket 79).8 	The
interlocutory appeal focused on the magistrate judge’s order permitting Mr.
Flying Horse to proceed on a pro se basis subject to the discovery restrictions in
Standing Order 16-04. 	Id. (referencing Dockets 39 & 39-1). 	On August 3,
2020, the Clerk of Court transmitted the notice of appeal to the Eighth Circuit.
(Docket 80).
On August 3, 2020, Mr. Filing Horse filed an objection to the magistrate
judge’s July 27, 2020, order. 	(Docket 81) (referencing Docket 68). 	The
objection raises the same arguments previously advocated in earlier filings by
Mr. Flying Horse. 	Compare Dockets 66, 73 & 81.
On August 4, 2020, the government timely filed its response to Mr. Flying
Horse’s motion to suppress. 	(Docket 82) (referencing Docket 65). 	After laying
out the pertinent facts, the government’s brief argued “[t]he cell phone was found
abandoned in a stolen vehicle and a search warrant was in fact obtained to
search the cell phone.” 	Id. at p. 3. 	According to the government:
7 Unless otherwise noted, the court intends to treat Mr. Flying Horse’s
requests for judicial notice as memoranda advocating his arguments on issues
raised.
8 Mr. Flying Horse’s filings at Dockets 77 and 78 are duplicates of Dockets
73 and 76.
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Among other items located on the phone, there were photographs
and videos showing [Mr. Flying Horse] in possession of multiple
firearms, including the Sig MCX rifle stolen from Pawn With Us on
April 19, 2020, the information captured by the pictures and videos
showing the defendant in possession of the Sig MCX rifle were taken
on April 19, 2020.
Id.
On August 4, 2020, Mr. Flying Horse filed a response in opposition to the
government’s motion for extension of time and the magistrate judge’s July 24,
2020, order. 	(Docket 83) (referencing Dockets 67 & 68). 	This submission was
in addition to his earlier filings on the same subjects. 	See Dockets 70, 73 & 81.
On August 6, 2020, Mr. Flying Horse filed a fourth request for judicial
notice.9 	(Docket 84). 	This request duplicated the first request. 	Compare
Dockets 74 at p. 1 & 84. 	Attached to the fourth request was Mr. Flying Horse’s
“Merits Brief” dated September 13, 2016, to the United States Court of Appeals
for the Eighth Circuit in his appeal from the District of South Dakota case,
CR-16-50076. 	(Docket 84 at pp. 3-15).
On August 7, 2020, Mr. Flying Horse filed a supplement to his
interlocutory appeal and a fifth request for judicial notice.10 	(Dockets 85 & 86).
The fifth request added additional details to Mr. Flying Horse’s process of serving
documents upon the government, which he intended to file with the District
Court. 	(Docket 86 at pp. 1-2).
9 See Docket 263 at p. 8.
10 See Docket 263 at p. 9.
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On August 12, 2020, because of the number of motions and issues raised
by Mr. Flying Horse, the court suspended the STA deadlines pending resolution
of those matters. 	(Docket 87). 	The order stated “[b]ased on the ends of justice
and 18 U.S.C. § 3161(h)(7), the deadlines and trial date [are] canceled pending
resolution of motions filed by Joseph Flying Horse.” 	Id. 	On August 13, 2020,
the Eighth Circuit dismissed Mr. Flying Horse’s interlocutory appeal for lack of
jurisdiction. 	(Docket 90).
On August 17, 2020, Mr. Flying Horse filed a motion for return of personal
property. 	(Docket 93). 	The motion sought return of “defendant’s . . . 1999
GMC Yukon Denali Sport” which had been seized by the United States Marshals
Service at the time of Mr. Flying Horse’s arrest. 	Id. at p. 1 & 1 n.1. 	If not
returned to Mr. Flying Horse immediately, he sought return of the vehicle at “the
closing of the proceedings initiated against him by the [government] in the
above-captioned matter.” 	Id. at p. 1. 	The government’s response, filed August
20, 2020, represented to the court that “[n]o vehicles, including a 1999 GMC
Yukon, have been seized by the United States as part of the case against the
defendant.” 	(Docket 96 at p. 1). 	It asked that “the defendant’s motion be
denied as moot.” 	Id.
On August 21, 2020, Mr. Flying Horse filed a motion to dismiss the
indictment for the government’s failure to prosecute, a motion for sanctions and
a motion for appointment of appellate counsel. 	(Dockets 97-99). 	The motion to
dismiss argues the government “failed to prosecute the above-captioned matter
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against [Mr. Flying Horse], whereby leaving this court in want of prosecution;
whereas plaintiff has not resisted, responded to, nor opposed any of defendant’s
filings since July 27, 2020.” 	(Docket 97 at p. 1). 	The motion for sanctions
against the government was premised on Mr. Flying Horse’s belief (1) the court
should grant the August 17, 2020, motion for return of the vehicle; (2) defendant
should be restored to his “economic & living position prior to his arrest on May
22, 2020”; (3) for “$100 for every hour he spent detained and restrained from his
Liberty and Freedom, against his will in the Pennington County Jail”; (4)
restraining the government from “infringing upon him attempting to legally own
firearm(s)”; and (5) reimbursing him for the cost of copies. 	Id. (emphasis
omitted). 	The justifications for these sanctions in Mr. Flying Horse’s view were
the false charges brought against him and the false government representations
in its motions for extensions of time. 	Id. 	The motion for appointment of
appellate counsel was to assist Mr. Flying Horse with his appeal. 	(Docket 99 at
p. 1 n.1).
On August 24, 2020, a fourth co-defendant Blake Two Eagle was arraigned
on the indictment. 	(Docket 101). 	His arraignment restarted the STA clock for
all four defendants at 70 days. 	Patterson, 140 F.3d at 772. 	The STA clock
remained stopped by the August 12, 2020, order suspending the STA deadlines
pending resolution of Mr. Flying Horse’s motions. 	(Docket 87).
On August 25, 2020, the government responded to Mr. Flying Horse’s
motion to dismiss for failure to prosecute and his motion for sanctions.
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(Dockets 113 & 114). 	Both of the government’s responses asked that
defendant’s motions be denied as frivolous. 	Id.
On August 26, 2020, the fifth codefendant Bison Little Spotted Horse was
arraigned on the indictment. 	(Docket 121). 	Again, Mr. Little Spotted Horse’s
arraignment restarted the STA clock at 70 days for all five defendants.
Patterson, 140 F.3d at 772. 	However, the August 12, 2020, order suspending
the STA deadlines pending resolution of Mr. Flying Horse’s motions remained in
effect. 	(Docket 87).
On September 2, 2020, Mr. Flying Horse filed a reply brief in support of his
motion to dismiss for failure to prosecute and his motion for sanctions. 	(Docket
128) (referencing Dockets 97 & 98). 	He also filed a sixth request for judicial
notice.11 	(Docket 129). 	On September 10, 2020, Mr. Flying Horse filed a
seventh request for judicial notice.12 	(Docket 130). 	As attachments to the
seventh request, among other items, Mr. Flying Horse included a photograph of a
handgun, a bill of sale by which he, as the prospective purchaser, attempted to
acquire a Hi Point 9mm pistol on April 28, 2020, and a firearms transaction
record of April 29, 2020. 	(Docket 130-1 at pp. 8-11). 	According to the bill of
sale, the purchase price was refunded to Mr. Flying Horse on May 6, 2020. 	Id.
at p. 9.
11 The magistrate judge’s order summarized this request. 	See Docket
263 at pp. 9-10.
12 See Docket 263 at pp. 10-11.
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Relevant to the STA, Mr. Two Eagle filed a motion for reconsideration of
pretrial release on September 23, 2020. 	(Docket 141). 	The STA clock was
already stopped by Mr. Flying Horse’s multiple motions and the August 12, 2020,
order. 	See Docket 87.
While the STA clock was stopped, on October 13, 2020, Mr. Flying Horse
filed his third motion to dismiss count V and his fourth motion to dismiss count
I of the indictment. 	(Dockets 147 & 148). 	Accompanying those filings was Mr.
Flying Horse’s “ninth request for judicial notice.”13 	(Docket 149) (capitalization
omitted). 	The next day, the government filed its responses to defendant’s
motions. 	(Dockets 150 & 151).
On October 15, 2020, the magistrate judge granted Mr. Two Eagle’s motion
for reconsideration of his pretrial release. 	(Docket 152). 	The next day, Mr.
Looking Back filed an emergency motion for a furlough. 	(Docket 153). 	That
same day, October 16, the magistrate judge denied Mr. Looking Back’s motion.
(Docket 154).
On October 19, 2020, Mr. Flying Horse filed a demand directed to the
South Dakota Division of Criminal Investigation for the return of a Motorola cell
phone, DeWalt tools and bolt cutters. 	(Docket 155). 	While these were
apparently items found in an abandoned, “crashed” vehicle in this case, Mr.
Flying Horse claims these items were stolen from him. 	Id. at p. 1. 	These items
also constituted part of the justification for the motion for sanctions filed earlier.
13 See Docket 263 at p. 13.
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Id. at p. 2. 	Accompanying the demand was Mr. Flying Horse’s eighth request for
judicial notice.14 	(Docket 156). 	The court assumes Mr. Flying Horse intended
this request for judicial notice to be considered a motion seeking the return of the
items of property identified in the demand. 	Compare Dockets 155 and 156.
On October 29, 2020, Mr. Flying Horse filed a motion for a detention
hearing, a tenth request for judicial notice15 and a motion for extension of time.
(Dockets 166, 168 & 169). 	Attached as an exhibit to the tenth request for
judicial notice, Mr. Flying Horse filed a marked-up copy of the indictment in this
case with the words “rejected & returned I do not consent to these proceedings”
and signed his name. 	(Docket 168-1 at p. 1) (capitalization omitted). 	The
motion for extension of time requested additional time to respond to the
government’s briefs in opposition to defendant’s third motion to dismiss count V
and his fourth motion to dismiss count I of the indictment. 	(Docket 169 at p. 1).
On October 30, 2020, Mr. Flying Horse filed a supplement in support of his
motion for a detention hearing. 	(Docket 170) (referencing Docket 166). 	On the
same day, the magistrate judge granted defendant’s motion for extension of time,
allowing him until November 2, 2020, to file his reply briefs. 	(Docket 171).
14 See Docket 263 at p. 12.
15 See Docket 263 at p. 14.
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On November 3, 2020, Mr. Flying Horse filed his eleventh16 and twelfth
requests for judicial notice.17 	(Docket 172 & 173). 	Under the prison mailbox
rule these filings were actually filed as of October 29, 2020.18 	(Docket 172 at
p. 4). 	In the eleventh request, Mr. Flying Horse again asserted his position as a
sovereign. 	(Docket 172 at p. 1). 	The twelfth request gave notice to the court
that another federal inmate executed a bill of sale to Mr. Flying Horse for a
“Browning, Model X Bolt, 300 Winchester Magnum caliber bolt-action rifle,
bearing serial number 04460ZN354.” 	(Docket 173 at p. 1 ¶ 1). 	According to
Mr. Flying Horse, the transfer of ownership of this rifle would not occur until his
state and federal charges were resolved. 	Id. 	Alleging the firearm had a value of
“at least $1,700,” Mr. Flying Horse claimed a property interest in the rifle even
though the jail staff would not return the bill of sale to him. 	Id. ¶¶ 2 & 3. 	The
twelfth request also gave notice that another federal inmate entered into an oral
contract with Mr. Flying Horse by which he was to receive ownership of one
“Phoenix Arms, model HP22A pistol, 22 caliber handgun, bearing serial number
4304547.” 	Id. ¶ 6. 	Again, ownership of this firearm was not to transfer until
resolution of Mr. Flying Horse’s state and federal charges. 	Id.
16 See Docket 263 at p. 14.
17 See Docket 263 at pp. 15-16.
18 “[T]he ‘prison mail box rule’ . . . provides that pro se prisoner filings are
considered timely filed if they are deposited in the prison’s internal mail system
on or before the last day for filing.” 	United States v. Bordeaux, No. 3:07-CR-
30060, 2011 WL 1549401, at *7 n.3 (D.S.D. Apr. 21, 2011) (internal citations
omitted).
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On November 4 and 5, 2020, Mr. Flying Horse filed two separate reply
briefs addressing his motions to dismiss counts I and V of the indictment.
(Dockets 174 & 175) (referencing Dockets 147 & 148). 	On November 9, 2020,
Mr. Flying Horse filed his thirteenth request for judicial notice.19 	(Docket 177).
The essence of this request was that because Mr. Flying Horse is a Native
American, the “Court lacks personal-matter and subject-matter jurisdiction over
. . . Flying Horse, except through what is provided to it by treaties made with the
people of the [Standing Rock Sioux Tribe].” 	Id. at p. 4.
On November 13, 2020, Mr. Flying Horse submitted a letter to the Clerk of
Court and a separate letter to United States Attorney Parsons together with
another motion to dismiss counts I and V of the indictment and a second motion
for an extension of time to file a reply. 	(Dockets 178-181). 	Styled as the
defendant’s fifth motion to dismiss, Mr. Flying Horse sought dismissal of counts
I and V as multiplicitous and being in violation of the double jeopardy clause.
(Docket 179 at p. 1). 	The second motion for an extension sought additional time
to respond to the government’s brief opposing defendant’s fourth motion to
dismiss. 	(Docket 181 at p. 1). 	The good cause asserted for this extension was
because Mr. Flying Horse had just been “released from [a] 23½ hour lock-down”
at the Pennington County Jail. 	Id.
On November 16, 2020, the government filed its response to Mr. Flying
Horse’s fifth motion to dismiss. 	(Docket 182) (referencing Docket 179). 	On
19 See Docket 263 at pp. 16-17.
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November 23, 2020, Mr. Flying Horse filed a reply brief in support of the motion.
(Docket 186).
On December 10, 2020, Mr. Flying Horse filed another motion to dismiss
count I of the indictment together with a motion for the return of the cell phone,
tools and bolt cutter raised in an earlier motion. 	(Docket 187 & 188)
(referencing Docket 155). 	In this sixth motion to dismiss, Mr. Flying Horse
asserted count I violates “the final clause of Amendment VIII, where [a case] was
dismissed against a defendant in a separate case within this Honorable Court’s
jurisdiction, whom [sic] is similarly situated.” 	(Docket 187 at p. 1). 	The motion
contended that to continue with prosecution in his case would result in a
disproportionate sentence when compared to a case which was dismissed
because the person did not know their gun had been stolen. 	Id. at n.2 & 3.
The same day, the government filed its response to Mr. Flying Horse’s sixth
motion to dismiss count I. 	(Docket 189) (referencing Docket 187).
On December 11, 2020, Mr. Flying Horse filed a fourteenth request for
judicial notice.20 	(Docket 191). 	This request again reargued his objection to
the magistrate judge’s order granting the government’s motion for an extension
of time to respond to defendant’s July 2, 2020, motion to dismiss. 	Id.
(referencing Dockets 59-62). 	The fourteenth request also argued for the court’s
adoption of defendant’s “justification defense[] [of]. . . necessity.” 	Id. at
20 See Docket 263 at pp. 17-18.
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p. 2 ¶ 2(b). 	The request further argued count V, possession of a firearm while
under indictment, is unconstitutional and violative of the Second Amendment.
Id. at p. 3 ¶ 2(d). 	The court must treat this last request as another motion to
dismiss count V of the indictment.
On December 14, 2020, Mr. Flying Horse filed a motion for a furlough.
(Docket 193). 	Mr. Flying Horse wanted to attend his daughter’s eye
appointment, “visit family and take a plethora of accumulated ‘legal work’ and
documents home.” 	Id. at p. 1.
On December 16, 2020, the government filed its response to defendant’s
fourteenth request. 	(Docket 197). 	The government treated the last part of Mr.
Flying Horse’s fourteenth request as a motion to dismiss count V. 	Id. at p. 1.
On December 18, 2020, Mr. Flying Horse filed a reply brief in support of
his sixth motion to dismiss. 	(Docket 198) (referencing Docket 187). 	The same
day, Mr. Flying Horse filed another motion for return of items of personal
property. 	(Docket 199). 	In this motion, Mr. Flying Horse seeks return of his
“CZ, model 52, 7.62x25 caliber semi-automatic pistol, bearing serial number
J05443” and the “CZ-52 magazine, with five 7.62x25 bullets,” all of which were
“seized on or about September 4, 2020, from the front passenger seat of a white
Ford Expedition (SD License Plate No. 2Z0212), where it had been placed for its
later retrieval by defendant, prior to his arrest on May 22, 2020.” 	Id. at 	p. 1.
According to Mr. Flying Horse the firearm was involved in the case of United
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States v. Jesse Warbonnett, CR. 20-50132 (D.S.D. 2020). 	Id. at p. 1 n.1; see
also CR. 20-50132, Docket 1 at p. 1.
On January 4, 2021, Mr. Flying Horse filed a seventh motion to dismiss
counts I and V. 	(Docket 201). 	This motion reasserted the same grounds
argued in earlier motions. 	Id. (referencing Docket 177). 	On January 7, Mr.
Flying Horse filed a motion for the contents of his pro se defendant binder.
(Docket 203).
On January 25, 2021, Mr. Flying Horse filed a fifteenth request for judicial
notice.21 	(Docket 210). 	On January 27, 2021, Mr. Flying Horse filed a motion
for the return to Isiah Cross White of a Smith & Weston Model 586, .357
magnum revolver taken by law enforcement from Mr. Cross White. 	(Docket
211). 	On February 1, 2021, Mr. Flying Horse moved that a Luger, Model SR9,
9mm pistol seized from Lester Waters be returned to Mr. Flying Horse or his
family. 	(Docket 216).
On February 5, 2021, Mr. Flying Horse filed an eighth motion to dismiss
counts I and V of the indictment. 	(Docket 218). 	This motion again argued for
dismissal of the indictment because of the government’s failure to prosecute the
case. 	Id. at p. 1.
On February 12, 2021, the defendant filed a motion for recusal of the
magistrate judge. 	(Docket 221). 	Mr. Flying Horse asserted the magistrate
judge failed or refused to rule upon his motions “although many . . . have gone
21 See Docket 263 at pp. 18-19.
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unopposed and unanswered.” 	Id. at p. 1 (emphasis omitted). 	On February 18
and 19, 2021, Mr. Flying Horse filed his sixteenth22 and eighteenth23 requests
for judicial notice. 	(Dockets 222 & 223).
On February 22, 2021, the defendant filed a sixth motion for return of
personal property. 	(Docket 231). 	In this motion, Mr. Flying Horse moved that
$32,630 seized from Justin Edward Johnson be returned to Mr. Flying Horse or
his family pursuant to a bill of sale executed by Mr. Johnson. 	Id. at p. 1. 	On
the same day, defendant filed a motion for bail and a seventeenth request for
judicial notice.24 	(Dockets 232 & 233).
On June 3, 2021, Mr. Flying Horse filed a motion to dismiss the
indictment, a motion to grant his unopposed motions, a second motion for
recusal and his nineteenth request for judicial notice.25 	(Dockets 250-53). 	The
motion to dismiss asserted the Speedy Trial Act and the Sixth Amendment
warranted dismissal of the indictment because “more than 70-days have elapsed
since the most newly indicted or arraigned, co-defendant was joined with the
defendant . . . and yet he still has not been brought to trial.” 	Id. at p. 1
22 See Docket 263 at p. 19.
23 Defendant’s seventeenth request for judicial notice was mailed on
February 15, 2021, but not received by the Clerk’s Office until February 22,
2021. 	See Docket 233.
24 See Docket 263 at pp. 19-20.
25 See Docket 263 at p. 21.
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(emphasis omitted). 	Defendant’s second motion for recusal sought removal of
both the magistrate judge and this judge from his case. 	(Docket 252).
On June 9, 2021, Mr. Flying Horse filed a notice of claim. 	(Docket 255).
By this notice the defendant sought reimbursement under the 1868 Fort Laramie
Treaty and 28 U.S.C. §§ 1491 & 1495 for violating his constitutional rights in this
prosecution. 	Id. at p. 1.
On June 3, 2021, the government filed its response in resistance to the
defendant’s motion to dismiss. 	(Docket 254). 	Mr. Flying Horse filed a reply
brief in support of his motion on June 11, 2021. 	(Docket 256) (referencing 250).
B. 	MAGISTRATE JUDGE’S R&Rs, ORDERS, DEFENDANT’S
OBJECTIONS AND SUBSEQUENT MOTIONS
On July 21, 2021, the magistrate judge filed three R&Rs and four orders
addressing defendant’s motions to dismiss, motion to suppress, motion for
sanctions and miscellaneous other motions. 	(Dockets 258-59 & 262-66). 	On
July 26, 2021, the magistrate judge filed two additional orders denying
defendant’s request for appellate counsel and denying defendant’s motions for
recusal. 	(Dockets 268-69). 	On August 2, 2021, Mr. Flying Horse filed an
objection to a R&R. 	(Docket 271) (referencing Docket 258).
On August 6, 2021, the magistrate judge filed two more orders addressing
issues raised in defendant’s motions and related matters. 	(Dockets 274-275).
The magistrate judge appointed standby counsel to assist Mr. Flying Horse so he
could have quicker access to discovery and filings in CM/ECF. 	(Docket 275).
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On August 9, 2021, Mr. Flying Horse filed an objection to another R&R.
(Docket 277) (referencing Docket 259). 	On August 13, 2021, he filed an
objection to an order. 	(Docket 280) (referencing Docket 261). 	The July 21,
2021, order was subsequently withdrawn by the magistrate judge. 	(Docket
261). 	On August 18, 2021, the magistrate judge filed an amended order.
(Docket 284).
While filing objections to the orders and R&Rs of the magistrate judge, on
August 16, 2021, Mr. Flying Horse filed his tenth motion to dismiss the
indictment. 	(Docket 282). 	On August 18, 2021, defendant filed a twentieth
request for judicial notice. 	(Docket 285). 	On August 20, 2021, the government
filed its brief in opposition to defendant’s tenth motion to dismiss. 	(Docket 286)
(referencing Docket 282).
On August 25, 2021, Mr. Flying Horse filed an objection responding to
another order. 	(Docket 288) (referencing Docket 269). 	On the same day, the
magistrate judge filed an order denying defendant’s twentieth request for judicial
notice. 	(Docket 289) (referencing Docket 285).
On August 30, 2021, Mr. Flying Horse filed an objection to the amended
order. 	(Docket 292) (referencing Docket 284). 	He also filed a reply brief in
support of his tenth motion to dismiss. 	(Docket 293) (referencing Docket 282).
On September 1, 2021, Mr. Flying Horse filed an objection to another order.
(Docket 294) (referencing Docket 263). 	On September 3, 2021, defendant filed
an objection to another order. 	(Docket 296) (referencing Docket 266).
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On September 9, 2021, Mr. Flying Horse filed three documents. 	The first
was defendant’s eleventh motion to dismiss counts I and V of the indictment.
(Docket 297). 	His second filing was a notice of invalidation of any documents
filed by his former attorney or his current standby counsel. 	(Docket 298). 	The
third filing was defendant’s affidavit in support of his motion for the removal of
Magistrate Judge Wollmann and this judge and defendant’s motion for the
appointment of a new judge. 	(Docket 299).
On September 10, 2021, Mr. Flying Horse filed five documents. 	The first
was defendant’s twelfth motion to dismiss counts I and V. 	(Docket 301). 	The
second was a motion for a bill of particulars. 	(Docket 302). 	The third was a
motion to remove his case to state court. 	(Docket 303). 	His fourth filing was a
notice of foreign law, that is, the constitution of the State of South Dakota and its
laws. 	(Docket 304). 	Mr. Flying Horse’s fifth filing was his affidavit asserting his
state court sentence had been completed, the state had restored his civil rights
including the right to possess firearms under the Second Amendment. 	(Docket
305).
On September 12, 2021, the government filed a motion for an extension of
time to respond to defendant’s eleventh motion to dismiss, twelfth motion to
dismiss, motion for a bill of particulars and motion to remove defendant’s case to
state court. 	(Docket 307) (referencing Dockets 297 & 301-02). 	The basis for
the government’s motion was that counsel was beginning a month-long trial
beginning the next week. 	Id. at p. 1. 	On September 13, 2021, the magistrate
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judge granted the government’s motion and required its responses to defendant’s
motions be filed by October 8, 2021. 	(Docket 309).
On September 15, 2021, Mr. Flying Horse filed two objection to earlier
orders issued by the magistrate judge. 	(Dockets 311) (referencing Docket 289)
and 312 (referencing Docket 265). 	On September 27, 2021, defendant filed an
objection to another order. 	(Docket 313) (referencing Docket 309).
On September 29, 2021, defendant filed three documents with the court.
The first was defendant’s thirteenth motion to dismiss counts I and V. 	(Docket
316). 	The second filing was defendant’s objection to an R&R. 	(Docket 317)
(referencing Docket 264). 	The final filing that day was what Mr. Flying Horse
titled his thirteenth request for judicial notice. 	(Docket 319). 	This was actually
defendant’s twenty-first request for judicial notice. 	Compare Dockets 177, 285
& 319.
On September 30, 2021, the government filed two briefs in response to
defendant’s September motions. 	(Dockets 320) (referencing Dockets 297, 301,
303 & 316) and 321 (referencing Docket 302). 	The government’s briefs were
filed eight days prior to the deadline established by the magistrate judge.
(Docket 309).
On October 8, 2021, Mr. Flying Horse filed an objection to another order of
the magistrate judge. 	(Docket 323) (referencing Docket 262). 	On October 14,
2021, Mr. Flying Horse filed a reply brief in response to the government’s
September 30 briefs. 	(Docket 324) (referencing Dockets 320 & 321).
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On October 21, 2021, the magistrate judge filed a R&R on three motions to
dismiss and defendant’s motion to remove his case to state court. 	(Docket 325)
(referencing Dockets 297, 301, 303 & 316). 	The same day, the magistrate judge
filed three orders denying defendant’s motions for change of judge, motion for a
bill of particulars and defendant’ thirteenth request for judicial notice. 	(Dockets
326-328) (referencing Dockets 299, 302 & 319).
On October 21, 2021, in an effort to suspend Mr. Flying Horse’s
continuous barrage of filings, the court entered an order setting a pretrial
conference hearing for January 21, 2022. 	(Docket 331 at p. 2). 	The order
protected Mr. Flying Horse’s right to file objections to the recent R&Rs and orders
of the magistrate judge. 	Id. 	Based on the findings in the order, the court
concluded that “any period of delay resulting from the continuance of this matter
from the date of this order to the date of the pretrial conference is excludable
delay pursuant to 18 U.S.C. §§ 3161(h)(1)(D), (1)(H) & (7)(A).” 	Id.
On November 5, 2021, Mr. Flying Horse filed an objection to the order
denying his motions for recusal of the magistrate judge. 	(Docket 338)
(referencing Docket 326). 	On November 10, 2021, Mr. Flying Horse filed a
motion for a 15-day extension of time to file additional objections. 	(Docket 339).
On November 12, 2021, finding good cause existed, the court granted
defendant’s motion for an extension of time. 	(Docket 340). 	Objections to the
final three filings of the magistrate judge were due on or before November 23,
2021. 	Id. 	Applying the prison mailbox rule, the court finds Mr. Flying Horse
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timely filed his final three objections on November 22, 2021, and November 29,
2021. 	(Dockets 342, 343 & 344) (referencing Dockets 329, 325 & 328
respectively).
C. 	RESOLUTION OF THE SPEEDY TRIAL ACT CLAIMS
On August 12, 2020, the court canceled the trial date until the pending
motions were resolved. 	(Docket 87). 	This was an “ends-of-justice”
continuance under § 3161(h)(7)(A). 	At that time, Mr. Flying Horse had six
motions, three objections to magistrate judge’s orders and five requests for
judicial notice pending. 	A subsection (h)(7)(A) tolling of the speedy trial clock is
“an ‘ends-of-justice’ continuance: A trial may be delayed if a district court finds
the ends of justice so require and ‘sets forth, in the record of the case, either
orally or in writing, its reasons for finding that the ends of justice served by the
granting of such continuance outweigh the best interests of the public and the
defendant in a speedy trial.’ ” 	Adejumo, 772 F.3d at 521 (quoting 18 U.S.C.
§ 3161(h)(7)(A)).
The court’s order constituted an open-ended and sua sponte continuance,
which starts a period of excludable time under the Act.26 	See United States v.
Twitty, 107 F.3d 1482, 1489 (11th Cir. 1997) (“An open-ended continuance may
be granted to serve the ends of justice.”). 	See also United States v. Wilson,
216 F. Supp. 3d 566, 580 (E.D. Pa. 2016) (“The [‘ends of justice’] continuance can
26 Unique to this case, the order was entered during a time when the speedy
trial clock was already stopped. 	See Docket 63.
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be open-ended, rather than for a specific period of time, but it must be . . .
granted prior to the days being excluded.”); United States v. Santiago-Becerril,
130 F.3d 11, 17-18 (1st Cir. 1997) (“Open-ended continuances are not prohibited
per se.”).
Some courts permitting open-ended continuances require the durations to
be “reasonable.” 	See, e.g., United States v. Clark, 717 F.3d 790, 823 (10th Cir.
2013). 	In the Eleventh Circuit, however, “[i]f the trial court determines that the
‘ends of justice’ require the grant of a continuance, and makes the required
findings, any period of delay is excludable under [the Act.]” 	Twitty, 107 F.3d at
1489 (emphasis in original); United States v. Hill, 487 Fed. Appx. 560, 562 (11th
Cir. 2012) (citing this holding from Twitty). 	The text of the statute mirrors the
Eleventh Circuit’s reasoning, providing for the exclusion of “[a]ny period of delay
resulting from a continuance granted by any judge on his own motion . . . if the
judge granted such continuance on the basis of his findings that the ends of
justice” are served. 	18 U.S.C. § 3161(h)(7)(A) (emphasis added).
The Act requires a court to accompany an “ends of justice” continuance
with specific findings. 	See id. 	“No such period of delay resulting from a
continuance granted by the court in accordance with this paragraph shall be
excludable under this subsection unless the court sets forth, in the record of the
case, either orally or in writing, its reasons for finding that the ends of justice
served by the granting of such continuance outweigh the best interests of the
public and the defendant in a speedy trial.” 	Id. 	“Although the Act is clear that
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the findings must be made, if only in the judge’s mind, before granting the
continuance . . . the Act is ambiguous on precisely when those findings must be
set forth in the record of the case.” 	Zedner v. United States, 547 U.S. 489,
506-07 (2006) (internal quotation marks and alteration omitted); Adejumo,
772 F.3d at 522. 	“At the very least the Act implies that those findings must be
put on the record by the time a district court rules on a defendant’s motion to
dismiss . . . .” 	Zedner, 547 U.S. at 507. 	Courts are “not required to make a
contemporaneous record of [their] ends-of-justice findings.” 	Adejumo, 772 F.3d
at 522 (noting that “a subsequent articulation suffices[. ]”). 	For those reasons,
the ends of justice served by granting an open-ended, sua sponte continuance
outweigh the best interest of the public and the defendant in a speedy trial.
18 U.S.C. § 3161(h)(7)(A).
Rather than suspending the filing of motions, objections and requests for
judicial notice based on the clear intent of the August 12, 2020, order, Mr. Flying
Horse continued his barrage of filings. 	From August 13, 2020, through June
11, 2021, Mr. Flying Horse filed 22 additional motions, 12 requests for judicial
notice, 10 briefs and one notice. 	Defendant’s filings required the government to
seek extensions of time and to file responsive briefs. 	To develop a complete
record, the magistrate judge was compelled to consider both parties’ motions for
continuances of briefing and to issue orders allowing extensions to both parties.
Mr. Flying Horse may argue his “earlier motions” were not resolved within
the time period established by § 3161(h)(1)(H) so the speedy trial clock expired
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and the indictment as it relates to him must be dismissed. 	(Docket 250).
Defendant’s reliance on subsection (h)(1)(H) is misplaced. 	Subsection (h)(1)(H)
contemplates that only 30 days may be excluded while a motion “is actually
under advisement by the court.” 	18 U.S.C. § 3161(h)(1)(H). 	“The only time
subsection H comes into play is when the speedy trial clock is running.” 	United
States v. Massat, CR. 15-50089, 2016 WL 4098566, at *3 (D.S.D. July 28, 2016).
Because the speedy trial clock was stopped by virtue of the August 12,
2020, order (Docket 87) and the barrage of filings by Mr. Flying Horse which
subsequently saturated the record, the court’s resolution of defendant’s
objections to the reports and recommendations and magistrate judge’s orders in
this order “were filed during a period the speedy trial clock was stopped.”
Massat, 2016 WL 4098566, at *3. 	“It is only after the speedy trial clock would
have restarted that § 3161(h)(1)(H) and the 30-day period for the court to resolve
those motions would have come into play.” 	Id.
The fact that several months lapsed between the filing of defendant’s
earliest motions and entry of the court’s order does not change the analysis
under the STA. 	See Twitty, 107 F.3d at 1489 (“If the trial court determines that
the ‘ends of justice’ require the grant of a continuance, and makes the required
findings, any period of delay is excludable under [the Act.]”) (emphasis in
original). 	Even if the Act required the open-ended continuance to be reasonable
in duration, the court concludes the resulting exclusion of days is reasonable
based on the findings above. 	See United States v. Green, 516 Fed. Appx. 113,
122-23 (3d Cir. 2013) (permitting a 16-month open-ended continuance).
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Under the Act there are 70 days remaining for trial. 	See Exhibit A
attached to this order. 	The Speedy Trial Act has not been violated. 	For the
reasons stated above Mr. Flying Horse has not sustained his burden to show the
motions to dismiss pursuant to the STA should be granted. 	Adejumo, 772 F.3d
at 521. 	Defendant’s motions to dismiss on this basis are denied.
III. 	SIXTH AMENDMENT
“Sixth Amendment and Speedy Trial Act challenges for delay are reviewed
independently of one another.” 	United States v. Williams, 557 F.3d 943,
948 (8th Cir. 2009) (citation and internal quotation marks omitted). 	“As to the
separate Sixth Amendment speedy trial claim, [the United States Court of
Appeals for the Eighth Circuit] stated that ‘[i]t would be unusual to find the Sixth
Amendment has been violated when the Speedy Trial Act has not.’ ” 	Shepard,
462 F.3d at 864 (quoting Titlbach, 339 F.3d at 699). 	A defendant’s Sixth
Amendment right to a speedy trial “ ‘attaches at the time of arrest or indictment,
whichever comes first, and continues until the trial commences.’ ” 	United
States v. Erenas-Luna, 560 F.3d 772, 776 (8th Cir. 2009) (quoting United States
v. McGhee, 532 F.3d 733, 739 (8th Cir. 2008)). 	The Sixth Amendment does not
specify a time limit in which an accused must be brought to trial. 	See U.S.
Const. amend. VI.
Because of the “vague” nature of the Sixth Amendment right, “any inquiry
into a speedy trial claim necessitates a functional analysis of the right in the
particular context of the case.” 	Barker v. Wingo, 407 U.S. 514, 522 (1972). 	To
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assist courts in evaluating speedy trial claims, the Barker Court established a
four-factor balancing test “in which the conduct of both the prosecution and the
defendant are weighed.” 	Id. at 530. 	These factors are (1) the length of the
delay, (2) the reasons for the delay, (3) the defendant’s assertion of his right to
speedy trial and (4) the prejudice to the defendant. 	Id.
A. 	LENGTH OF DELAY
Because the “length of the delay is to some extent a triggering
mechanism,” courts need not inquire into the remaining factors “[u]ntil there is
some delay which is presumptively prejudicial[.]” 	Id. 	“To trigger speedy trial
analysis, the defendant must allege the interval between accusation and trial has
crossed a line dividing ordinary from presumptively prejudicial delay.” 	Mallett,
751 F.3d at 913 (internal quotation marks omitted).
Defendant was indicted on June 11, 2020. 	(Docket 26). 	His initial
appearance on the indictment occurred on June 17, 2020. 	(Docket 29). 	Trial
has yet to occur, so the delay has been over 18 months. 	That is presumptively
prejudicial. 	See Mallett, 751 F.3d at 913-14 (finding 17 months presumptively
prejudicial). 	This factor weighs in defendant’s favor.
B. 	REASONS FOR DELAY
The court must “consider the reasons for the delay and evaluate whether
the government or the criminal defendant is more to blame.” 	Mallett, 751 F.3d
at 914 (internal quotation marks omitted). 	The record does not demonstrate
government negligence caused the delay in this case. 	See United States v.
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Rodriguez-Valencia, 753 F.3d 801, 806-07 (8th Cir. 2014) (discussing what may
constitute government negligence). 	Defendant shoulders the “blame” based on
the nonstop motions he filed which compelled to the court to spend considerable
time resolving defendant’s substantive motions. 	See Mallett, 751 F.3d at 914;
cf. McGhee, 532 F.3d at 739 (finding no constitutional violation in a 915-day
delay and the defendant mostly responsible for the delay because he “moved for
two continuances, a mental competency evaluation, an emergency hearing to
withdraw his request for determination of mental competency, and to dismiss
the indictment[. ]”). 	The court finds this factor weighs heavily against
defendant.
C. 	ASSERTION OF SPEEDY TRIAL RIGHT
Defendant repeatedly asserted his speedy trial right. 	(Dockets 97 at p. 1;
250 at p. 1 & 282 at p. 1). 	However, defendant’s “substantial contributions to
the pretrial delay belie his . . . attempts to assert his speedy trial rights.”
Mallett, 751 F.3d at 914. 	The court finds this factor weighs against defendant.
D. 	PREJUDICE
“Finally, the court must consider whether the delay prejudiced
[defendant]. 	In doing so, the court should assess the interests served by the
speedy trial right, which are ‘(i) to prevent oppressive pretrial incarceration;
(ii) to minimize anxiety and concern of the accused; and (iii) to limit the
possibility that the defense will be impaired.’ ” 	United States v. Sims, 847 F.3d
630, 636 (8th Cir. 2017) (quoting Barker, 407 U.S. at 532). 	“A showing of actual
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prejudice is required if the government exercised reasonable diligence in
pursuing the defendant.” 	Erenas-Luna, 560 F.3d at 778-79. 	“Where the
government has been negligent, however, prejudice can be presumed if there has
been an excessive delay.” 	Id. 	“Whether or not a showing of prejudice is
required in every case, [the Eighth Circuit has] been clear that the degree of
prejudice required, if any, depends on the defendant’s showing under the
preceding Barker factors.” 	Sims, 847 F.3d at 636. 	The court does not
presume this case’s delay prejudiced defendant because the record does not
establish the government has been negligent and the court finds the government
has been reasonably diligent. 	See Erenas-Luna, 560 F.3d at 778-79. 	As a
result, defendant must show actual prejudice “under the preceding Barker
factors.” 	Sims, 847 F.3d at 636.
Defendant does not demonstrate actual prejudice. 	On this issue,
defendant merely highlights his pretrial detention. 	This assertion is not enough
to support a claim of actual prejudice. 	Of the three interests listed above,
“prejudice to the last is the most serious . . . because the inability of a defendant
adequately to prepare his case skews the fairness of the entire system.”
Erenas-Luna, 560 F.3d at 778 (internal quotation marks omitted). 	Defendant
presents no claim of actual prejudice. 	This is “insufficient, without more, to
satisfy his burden.” 	See id.; see also Young v. United States, 953 F. Supp. 2d
1049, 1064 (D.S.D. 2013) (“The delay did not limit his defense. 	Young, for
example, has not even attempted to identify witnesses helpful to his defense who
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became unavailable due to the delay.”). 	The court finds this factor weighs
against defendant.
E. 	RESOLUTION OF THE SIXTH AMENDMENT CLAIMS
Although the duration of this case is presumptively prejudicial, the other
Barker factors analysis support finding no Sixth Amendment violation. 	The
court denies defendant’s motion to dismiss the indictment based on a violation of
his Sixth Amendment right to a speedy trial.
Mr. Flying Horse also claims dismissal is justified based on a violation of
his Fifth Amendment right to due process. 	(Docket 147 at p. 1 & 1 n.3). 	But
that claim is focused on his belief the magistrate judge improperly granted a
government continuance to file a responsive brief. 	Id. 	Mr. Flying Horse does
not raise a credible Fifth Amendment claim.
IV. 	DEFENDANT’S OBJECTIONS TO REPORTS
AND RECOMMENDATIONS
Having addressed defendant’s speedy trial claims, the court addresses
each of Mr. Flying Horse’s objections to the magistrate judge’s R&Rs. 	Under the
Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a party files written objections to
the magistrate judge’s proposed findings and recommendations, the district
court is required to “make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection is made.”
Id. 	The court may “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 	Id. 	See also Fed. R. Crim. P.
59(b)(3).
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A. 	OBJECTION TO DOCUMENT 258
Mr. Flying Horse filed an objection to the magistrate judge’s R&R
recommending the court deny defendant’s motions for entry of default and
motion to grant unopposed motions. 	(Docket 271) (referencing Docket 258).
Defendant’s first objection contends the magistrate judge was biased in
favor of the government by permitting the prosecution to file an untimely
response to defendant’s motion to dismiss. 	Id. 	As explained above, the court
found the magistrate judge’s order was premised on good cause shown by the
government. 	See supra at p. 8 n.3. 	By granting an extension, the magistrate
judge’s order made the government’s motion timely. 	See Docket 61. 	The
magistrate judge did not take on the role of a prosecutor or show bias.
Defendant’s first objection is overruled.
Mr. Flying Horse’s second objection is that the magistrate judge
improperly denied, without authority to do so, defendant’s request for entry of
default against the government. 	(Docket 271 at p. 2). 	Defendant misinterprets
the magistrate judge’s finding. 	Pursuant to 28 U.S.C. § 636(b)(1), the
magistrate judge recommended to the district court that defendant’s request for
entry of default be denied. 	(Docket 258 at p. 4). 	This is a proper method by
which to notify the district court of the recommendation. 	Defendant’s second
objection is overruled.
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Defendant’s objections, Docket 271, are overruled. 	The court adopts the
R&R in its entirety. 	(Docket 258). 	Defendant’s motions (Dockets 56, 64 & 251)
are denied.
B. 	OBJECTIONS TO DOCUMENT 259
Mr. Flying Horse filed an objection to the magistrate judge’s R&R
recommending the court deny defendant’s motion to suppress. 	(Docket 277)
(referencing Docket 259).
Defendant’s first objection contends the magistrate judge was biased in
favor of the government by raising an issue Mr. Flying Horse claims was neither
raised by his motion to suppress nor the government’s responsive brief. 	Id. at
p. 1. 	The court finds the magistrate judge properly addressed the issue raised
by defendant’s motion to suppress and did not take on the role of a prosecutor or
show bias against the defendant. 	Defendant’s first objection is overruled.
Defendant’s second objection is the government’s responsive brief failed to
cite legal authority in support of its argument. 	Id. at p. 2. 	Defendant’s
objection is without merit. 	See Docket 82 at pp. 3-5. 	Defendant’s second
objection is overruled.
Defendant’s objections, Docket 277, are overruled. 	The court adopts the
R&R (Docket 259) in its entirety. 	Defendant’s motion to suppress (Docket 65) is
denied.
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C. 	OBJECTION TO DOCUMENT 261
Defendant filed an objection to the R&R addressing defendant’s motions to
strike and other matters. 	(Docket 280) (referencing Docket 261). 	The
magistrate judge subsequently withdrew the R&R and noted it was “filed in
error.” 	(Docket 261) (CM/ECF entry; capitalization omitted). 	Defendant’s
objection (Docket 280) is denied as moot.
D. 	OBJECTIONS TO DOCUMENT 264
Mr. Flying Horse filed an objection to the magistrate judge’s R&R
recommending the court deny defendant’s first, second, third, fourth, fifth, sixth,
seventh, eighth and ninth motions to dismiss. 	(Docket 317) (referencing Docket
264).
Defendant’s first objection contends the magistrate judge was biased in
favor of the government by recommending resolution of the seventh and eighth
motions to dismiss without a brief in opposition being filed by the government.
Id. at p. 1. 	The defendant’s seventh motion to dismiss is premised on his
thirteenth request for judicial notice. 	(Docket 264 at p. 13) (referencing Docket
177). 	The magistrate judge found defendant’s request for judicial notice was
“not a motion which would require a responsive filing under [D.S.D. Crim LR]
47.1” 	Id.
The government was under no obligation to respond to defendant’s
requests for judicial notice. 	That being said, the government’s failure to
respond does not prove the court had no jurisdiction over Mr. Flying Horse.
Addressing the merits of defendant’s seventh motion to dismiss, the magistrate
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judge did not show bias in favor of the government or prejudice toward the
defendant.
Defendant’s first objection is overruled.
Defendant’s objection to the handling of the eighth motion to dismiss
asserts the magistrate judge blatantly misrepresented his argument. 	(Docket
317 at pp. 2-3). 	The magistrate judge found Mr. Flying Horse cited “civil cases”
as opposed to criminal cases. 	(Docket 264 at p. 14). 	Mr. Flying Horse
contends that is wrong because he cited a criminal case, United Staes v. Ngo Tra,
1994 U.S. Dist. LEXIS 7451 * 3 (E.D. La 1994).27 	(Docket 317 at p. 3).
Mr. Flying Horse is mistaken. 	While the government was the plaintiff in
Tra, the action was a civil case “to enforce a civil penalty administratively
assessed by the Secretary of Commerce.” 	Tra, 1994 WL 247174, *1. 	The
magistrate properly considered, then rejected defendant’s argument and the
comment by the magistrate judge does not show or express bias for the
government or prejudice against the defendant.
Defendant’s second objection is overruled.
Defendant’s third objection is that the magistrate judge improperly argued
for the government that the personal jurisdiction requirement only applies to the
court. 	(Docket 317 at p. 4). 	In support of this objection, Mr. Flying Horse
references civil cases which place the burden on a plaintiff to establish a federal
court’s limited jurisdiction. 	Id. at p. 5. 	That argument is flawed, however,
27 The court researches in Westlaw and the citation of this case is United
States v. Tra, Civ. A. No. 92-1516, 1994 WL 247174 (E.D. La. June 1, 1994).
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when addressing the court’s criminal jurisdiction. 	As the magistrate judge
accurately stated, a sovereign citizen claim like that posed by Mr. Flying Horse is
“completely without merit, patently frivolous, and . . . rejected without expending
any more of this Court’s resources . . . .” 	(Docket 264 at p. 3) (citing United
States v. Jagim, 978 F.2d 1032, 1036 (8th Cir. 1992)). 	Mr. Flying Horse’s
sovereign citizen claim is frivolous and without merit.
Defendant’s third objection is overruled.
Defendant’s fourth objection is that the magistrate judge incorrectly
concluded the charges against him allegedly occurred in the state of South
Dakota and not in the district of South Dakota. 	(Docket 317 at p. 6). 	Because
of this purported error, Mr. Flying Horse asserts he is entitled to an acquittal.
Id.
Defendant’s fourth objection is without merit. 	The district of South
Dakota encompasses all of the state of South Dakota. 	A federal offense
committed in the state of South Dakota is committed in the district of South
Dakota.
Defendant’s fourth objection is overruled.
Defendant’s fifth objection to the R&R is that he was not under
“indictment” on April 19 and 21 of 2020, during which an individual would be
prohibited from possessing a firearm. 	Id. at p. 6. 	In support of this objection,
Mr. Flying Horse filed a copy of a state court complaint dated March 9, 2020. 	Id.
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(referencing Docket 150-1). 	He asserts this complaint “has not been filed in
state court.” 	Id.
Whether Mr. Flying Horse has a factual defense to the charge in count V of
the indictment is not before the court. 	Any factual issue must be resolved by a
trial jury. 	The magistrate judge analyzed the legal issue of whether a complaint
constitutes an indictment for purposes of 18 U.S.C. § 922. 	(Docket 264 at p. 7).
The analysis in the R&R accurately sets forth the law.
Mr. Flying Horse’s fifth objection is overruled.
Defendant’s sixth objection is that the magistrate judge improperly
analyzed the Speedy Trial Act and his rights under the Sixth Amendment.
(Docket 317 at p. 7) (referencing Docket 264 at pp. 15-19). 	He again asserts the
magistrate judge failed to address defendant’s claim that the government’s brief
did not cite legal authority. 	Id. (referencing Docket 254). 	Defendant’s objection
is without merit. 	See Docket 254.
The court resolved defendant’s STA and Sixth Amendment claims earlier in
this order. 	See supra, at pp. 32 & 36. 	The magistrate judge’s analysis is
consistent with the court’s conclusions.
Before leaving defendant’s objections to Docket 264, the court finds the
magistrate judge improperly found the third Barker factor weighed in
defendant’s favor. 	The court found that although Mr. Flying Horse asserted his
right to a speedy trial, that argument claim was outweighed by the barrage of
motions and other documents filed by the defendant. 	See supra at p. 34-35.
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The R&R is amended to state the third Barker factor weighed against the
defendant.
Defendant’s objections (Docket 317) are overruled. 	The court adopts the
R&R Docket 264) as amended in this order. 	Defendant’s motions to dismiss
(Dockets 51, 97, 147, 148, 179, 187, 201, 218 & 250) are denied.
E. 	OBJECTION TO DOCUMENT 325
Mr. Flying Horse filed an objection to the magistrate judge’s R&R
recommending the court deny defendant’s eleventh, twelfth and thirteenth
motions to dismiss and his motion to remove the case to state court. 	(Docket
343) (referencing Docket 325). 	Defendant’s objection contends the magistrate
judge was biased in favor of the government by recommending resolution of the
three motions to dismiss without requiring the government’s brief to cite
supporting legal authority. 	Id. at pp. 1-2. 	The objection is without merit as the
government’s argument was supported by case authority. 	See Docket 320 at
pp. 1-2.
The thirteenth motion again challenges the earlier R&R in which
defendant claims the magistrate judge incorrectly concluded the charges against
him allegedly occurred in the state of South Dakota and not in the District of
South Dakota. 	(Docket 316). 	This argument was foreclosed earlier in this
order. 	See supra at pp. 41-42. 	No further legal authority need be referenced
by the government to again permit the magistrate judge to reject defendant’s
frivolous and meritless argument.
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Defendant’s objection (Docket 343) is overruled. 	The court adopts the
R&R (Docket 325) in its entirety. 	Defendant’s motions to dismiss (Dockets 297,
301 & 316) and his motion to remove the case to state court (Docket 303) are
denied.
V. 	DEFENDANT’S OBJECTIONS TO ORDERS
When addressing a defendant’s objections to an order of a magistrate
judge, the court employs a different standard of review. 	The Federal Magistrate
Act directs that if a party objects to an order on any pretrial matter, “the court
may reconsider . . . where it has been shown that the magistrate judge’s order is
clearly erroneous or contrary to law.” 	28 U.S.C. § 636(b)(1)(A).
A. 	OBJECTIONS TO DOCUMENT 262
Defendant first objects to an order of the magistrate judge denying his
motion for sanctions. 	(Docket 323) (referencing Docket 266). 	After analyzing
the parties’ submissions, the magistrate judge denied defendant’s motion. 	Id.
at p. 4. 	In his objections to this order, Mr. Flying Horse reargued the positions
he advanced in support of the original motion. 	Compare Dockets 98 & 323 at
pp. 1-2. 	Mr. Flying Horse claims the magistrate judge sua sponte improperly
adopted a position not taken by the government. 	Id. at p. 2. 	The view taken by
the magistrate judge was that “[d]ocuments are routinely e-signed and filed
remotely. 	The fact that the Defendant received a letter from Mr. Patterson on
July 27, 2020[,] does not conclusively establish Mr. Patterson was in the office on
that date.” 	Id. at p. 2 (referencing Docket 262 at p. 3). 	Mr. Flying Horse argues
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because he received postage meter stamped envelopes from the Office of the
United States Attorney on days Mr. Patterson represented to the court that he
was out of the office, this established the government’s intentional fraudulent
conduct. 	Id.
Defendant’s argument is without merit. 	The court notes it is not
uncommon for attorneys to mail letters which were e-mailed to support staff and
then placed on letterhead stationery for mailing. 	This practice is common with
a defendant in jail because the defendant may not have access to e-mail. 	The
magistrate judge did not overstep the boundaries of her judicial independence
and become a prosecutor.
Defendant’s second objection claims the magistrate judge improperly
determined his motion for sanctions was moot. 	Id. at p. 4. 	Defendant argues
the government filed false charges against him. 	Id. 	The court agrees with the
magistrate judge’s conclusion that such a claim is moot once a grand jury
independently indicts a defendant.
The court reviewed the magistrate judge’s order denying defendant’s
motions and finds no error, clear or otherwise, and the order is not contrary to
law. 	28 U.S.C. § 636(b)(1)(A). 	Defendant’s objections (Docket 323) are
overruled. 	The court affirms the magistrate judge’s order. 	(Docket 262).
B. 	OBJECTIONS TO DOCUMENT 263
Defendant objects to the magistrate judge’s order resolving defendant’s
first 19 requests for judicial notice. 	(Docket 294) (referencing Docket 263).
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After analyzing each of the defendant’s requests the magistrate judge filed an
order denying all 19 requests for judicial notice.28 	(Docket 263 at pp. 21-22).
Defendant’s objection advances the same argument presented in earlier
objections, that is, the magistrate judge showed actual bias. 	(Docket 294 at
p. 1). 	He asserts the government failed to file any responsive brief or other
argument opposing defendant’s requests for judicial notice, except for the 14th
request. 	Id. (referencing Docket 197). 	Mr. Flying Horse argues the magistrate
judge sua sponte independently performed an analysis which the government did
not present. 	Defendant claims this process violated his due process rights. 	Id.
at p. 2.
The court finds the magistrate judge did a comprehensive analysis of each
of defendant’s requests for judicial notice. 	(Docket 263 at pp. 4-21). 	This is the
independent judicial examination the court would expect, with or without the
government’s arguments. 	Simply because a defendant files a request for
judicial notice does not mean the court must accept the contents of the request
when the government does not file a response. 	Most of Mr. Flying Horse’s
requests for judicial notice are more properly classified as his written submission
in support of the numerous motions filed.
The court reviewed the magistrate judge’s order denying defendant’s
requests for judicial notice and finds no error, clear or otherwise, and the order is
not contrary to law. 	28 U.S.C. § 636(b)(1)(A). 	Defendant’s objections (Docket
28 Docket 78 is a duplicate of Docket 76.
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294) are overruled. 	The court affirms the magistrate judge’s order. 	(Docket
263).
C. 	OBJECTIONS TO DOCUMENT 265
Defendant objects to the magistrate judge’s order resolving defendant’s
seven motions for the return of various items of personal property. 	(Docket 311)
(referencing Docket 265). 	The magistrate judge’s order denied defendant’s
motions for the return of one vehicle, two cell phones, miscellaneous tools, five
firearms, ammunition and $32,630 in cash. 	(Docket 265).
Mr. Flying Horse again advances the same objection that the magistrate
judge sua sponte initiated arguments not made by the government and this
conduct violated his due process rights. 	(Docket 311 at pp. 1-2). 	Defendant’s
argument fails to acknowledge that the government filed a brief on the first
motion indicating there was no vehicle seized by the United States as part of
these proceedings. 	(Docket 265) (referencing (Docket 96). 	In addition, Mr.
Flying Horse acknowledged in his own motions that a number of the items he
requested were being held as evidence in criminal cases against other
defendants. 	Id. at pp. 3-7.
A court examining a defendant’s motions for delivery of property being held
in other criminal cases involving other named individuals does not need
argument of government counsel when the motions are frivolous. 	The court
reviewed the magistrate judge’s analysis and does not find any bias, implied or
actual. 	Defendant’s first objection is overruled.
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Defendant’s second objection claims the magistrate judge “should have
afforded [him] an opportunity to assert an alternative claim for damages[.]”
(Docket 311 at p. 2). 	The case authority cited by Mr. Flying Horse is not
applicable to the undisputed facts acknowledged by the defendant, that is the
items of personal property are being held as evidence in other criminal cases.
Defendant’s objection is without merit and is overruled.
Defendant’s third objection contends the magistrate judge
unconstitutionally infringed on his Second Amendment rights. 	Id. at p. 3. 	Mr.
Flying Horse asserts his Second Amendment rights were “re-stored . . . on May
31, 2019.” 	Id. (referencing Docket 305). 	Defendant represents he received
from the South Dakota Department of Correction (“SDDOC”) a certificate issued
pursuant to SDCL § 24-15A-7 which stated “the inmate shall at the time of
discharge be considered as restored to the full rights of citizenship.” 	(Docket
305) (emphasis omitted). 	With this submission, Mr. Flying Horse asserts the
magistrate judge incorrectly concluded he is prohibited from the lawful
possession of firearms. 	(Docket 311 at p. 3) (referencing Docket 265 at p. 4).
Mr. Flying Horse’s objection is misplaced. 	Restoration of one’s civil rights
following completion of a state imposed felony sentence does not automatically
restore the individual’s civil rights under federal law. 	Beecham v. United States,
511 U.S. 368, 374 (1994). 	“In order for a conviction to be excludable under
§ 921(a)(20), the record must show effective and actual restoration of the right to
possess firearms.” 	United States v. Sonczalla, 561 F.3d 842, 844 (8th Cir.
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2009). 	“[O]verlapping firearm prohibitions may prevent the effective and actual
restoration of that right.” 	Id.
Whether Mr. Flying Horse was restored to all his civil rights is unclear as
the SDDOC certificate is not of record. 	But for purposes of this analysis, what
remains clear is that as of March 9, 2020, he was under indictment in the state
court. 	See supra at p. 42. 	As of that date, he would be prohibited from
possessing a firearm or ammunition. 	18 U.S.C. § 922(n).
If the magistrate judge was mistaken and Mr. Flying Horse was not
prohibited from possessing a firearm based on his prior three state felonies, he
was still under indictment as of the date of the magistrate judge’s order. 	That
status would be a barrier to his lawful possession, whether actual or
constructive, of the firearms he seeks to obtain by the current motions.
The court reviewed the magistrate judge’s order denying defendant’s seven
motions for return of property and finds no error, clear or otherwise, and the
order is not contrary to law. 	28 U.S.C. § 636(b)(1)(A). 	Defendant’s objections
(Docket 311) are overruled. 	The court affirms the magistrate judge’s order
(Docket 265) as modified by this order.
D. 	OBJECTIONS TO DOCUMENT 266
Defendant objects to the magistrate judge’s order resolving defendant’s
motion for a detention hearing, motion for a furlough and motion for bail.
(Docket 296) (referencing Docket 266). 	The magistrate judge denied all three
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motions and made detailed findings supporting the conclusion Mr. Flying Horse
remained a danger to the community and a flight risk. 	(Docket 266 at 	pp. 3-7).
Defendant’s first objection asserts the magistrate judge lacked the
authority to act on his motions. 	(Docket 296 at p. 1). 	He claims there is no
“procedural mechanism” for the magistrate judge to rule on the motions. 	Id.
Mr. Flying Horse’s first objection is without merit. 	Title 18 of the United
States Code § 3142 gives specific authority to the court to review a defendant’s
detention status:
]A]t any time before trial if the judicial officer finds that information
exists that was not known to the movant at the time of the hearing
and that has a material bearing on the issue whether there are
conditions of release that will reasonably assure the appearance of
such person as required and the safety of any other person and the
community.
Id., § 3142(f)(2)(B). 	Pursuant to 26 U.S.C. § 636(b)(1)(A) and a Standing Order
dated April 1, 2018, the court granted authority to Magistrate Judge Daneta
Wollmann “to hear and determine any pretrial matter pending before the
Court[.]”29 	This grant of authority included the ability to conduct pretrial
detention hearings, motions for reconsideration of pretrial release and furlough
motions. 	The magistrate judge’s authority was renewed and extended by
Standing Order 21-09 dated August 11, 2021.30 	Defendant’s first objection is
overruled.
29 The April 1, 2018, Standing Order can be found at: https://www.sdd.
uscourts.gov/content/designation-jurisdiction-united-states-magistrate-
judge-district-south-dakota-western.
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Defendant’s second objection is the magistrate judge showed bias against
him by sua sponte developing a record on the claims presented by the motions to
change his detention status. 	(Docket 296 at p. 2). 	Even though the
government did not respond to Mr. Flying Horse’s motions, the magistrate judge
was duty bound to determine whether the defendant was entitled to be released
pending trial or whether he constituted a flight risk or a danger to the community
and should be detained until trial. 	18 U.S.C. § 3142.
As part of the basis for the order denying defendant’s motions, the
magistrate judge placed in the record a detailed summary of the factors upon
which the denial of change of custody status was made. 	(Docket 266 at pp. 4-7).
The magistrate judge did not go outside the record made at the preliminary
hearing held on June 3, 2020. 	Id. at p. 5. 	At the hearing, Mr. Flying Horse was
given the opportunity to cross-examine the Special Agent of the Bureau of
Alcohol, Tobacco and Firearms and to present any additional evidence the
defendant may have considered pertinent to the issue of pretrial release.
Defendant’s second objection is overruled.
The court reviewed the magistrate judge’s order denying Mr. Flying Horse’s
three motions and finds no error, clear or otherwise, and the order is not
contrary to law. 	28 U.S.C. § 636(b)(1)(A). 	Defendant’s objections (Docket 296)
are overruled. 	The court affirms the magistrate judge’s order. 	(Docket 266).
30 Standing Order 21-09 can be found at: https://www.sdd.uscourts.gov/
content/designation-jurisdiction-united-states-magistrate-judge-district-
south-dakota-western-0.
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E. 	OBJECTIONS TO DOCUMENT 269
Mr. Flying Horse objects to the magistrate judge’s order denying the
defendant’s two motions for recusal. 	(Docket 288) (referencing Docket 269).
Mr. Flying Horse’s complaint against the magistrate judge is premised on her
failure or refusal to timely rule on his previous motions. 	(Docket 269 at p. 1)
(referencing Dockets 221 & 252).
In his objection, Mr. Flying Horse first asserts the magistrate judge
repeatedly displayed bias by sua sponte advancing arguments not submitted by
the government. 	(Docket 288 at p. 1). 	This is the same argument made by the
defendant in earlier motions before the court. 	In every instance, the court
rejected defendant’s argument. 	For the same reasons stated earlier in this
order, the court overrules the defendant’s objection. 	Mr. Flying Horse’s motions
presented no credible evidence of an appearance of bias on the part of the
magistrate judge which would interfere with the judicial independence necessary
to resolve defendant’s motions. 	See Dockets 221 & 252. 	The court finds Mr.
Flying Horse failed to articulate any objective facts upon which Magistrate Judge
Wollmann would be compelled to disqualify herself from defendant’s case or
upon which his motions for recusal should be granted.
The court finds no error, clear or otherwise, and the magistrate judge’s
order is not contrary to law. 	28 U.S.C. § 636(b)(1)(A). 	Defendant’s objections
(Docket 288) are overruled. 	The court affirms the magistrate judge’s order.
(Docket 269).
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In his second motion for recusal, Mr. Flying Horse not only seeks the
removal of the magistrate judge but the removal of this federal district judge.
(Docket 252 at p. 1). 	While the magistrate judge had the authority to determine
whether to grant defendant’s motions for recusal of the magistrate judge, the
magistrate judge had no authority to address a recusal motion directed to a
district court judge. 	The authority to resolve that motion remains with this
court. 	28 U.S.C. § 455(a).
Based on Mr. Flying Horse’s motion and subsequent affidavit (Docket 299),
he fails to articulate any objective facts upon which this court would be
compelled to disqualify itself from defendant’s case or upon which his motion for
recusal should be granted. 	Id.; United States v. Denton, 434 F.3d 1104, 1111
(8th Cir. 2006).
Defendant’s motion for recusal (Docket 252) as it relates to this district
court judge is denied.
F. 	OBJECTIONS TO DOCUMENT 326
Defendant’s objection focuses on the magistrate judge’s second order
denying defendant’s motion for recusal based upon his affidavit for a change of
judge. 	(Docket 338) (referencing Docket 326).
An affidavit is not an independent filing which must be considered a
motion for purposes of 28 U.S.C. § 636. 	The court finds the affidavit was
intended by Mr. Flying Horse to relate back to his earlier objection (Docket 288)
to the magistrate judge’s order denying the first two motions for recusal.
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(Docket 269). 	Because the court already denied the defendant’s objection to the
earlier order, the affidavit adds nothing to the analysis and does not change the
outcome of defendant’s motions.
The court finds no error, clear or otherwise, and the magistrate judge’s
order is not contrary to law. 	28 U.S.C. § 636(b)(1)(A). 	Defendant’s objections
(Docket 338) are overruled. 	The court affirms the magistrate judge’s order
(Docket 326).
To the extent Mr. Flying Horse’s affidavit was intended to address
defendant’s motion for recusal of this district court judge (Docket 252), the court
finds the affidavit fails to articulate any objective facts upon which recusal is
appropriate. 	Defendant’s effort to revitalize his motion for recusal 	through the
use of the affidavit (Docket 252) is denied.
G. 	OBJECTION TO DOCUMENT 328
Defendant’s objection focuses on the magistrate judge’s order denying Mr.
Flying Horse’s motion for a bill of particulars. 	(Docket 344) (referencing Docket
328). 	Defendant’s sole objection to the order is his claim the magistrate judge
showed bias in favor of the government and against Mr. Flying Horse in denying
the motion for a bill of particulars. 	Id. at pp. 1-2. 	This objection has been
rejected a number of times earlier in this order. 	To simply reargue this claim in
every objection does not make the claim stronger. 	For the same reasons stated
earlier in this order, the court rejects the defendant’s argument. 	Mr. Flying
Horse presents no credible evidence of bias on the part of the magistrate judge
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which would interfere with the judicial independence required to resolve
defendant’s motion.
The court reviewed the magistrate judge’s order denying defendant’s
motion for a bill of particulars and finds no error, clear or otherwise, and the
order is not contrary to law. 	28 U.S.C. § 636(b)(1)(A). 	Defendant’s objection
(Docket 344) is overruled. 	The court affirms the magistrate judge’s order.
(Docket 328).
H. 	OBJECTION TO DOCUMENT 329
Defendant’s objection focuses on the magistrate judge’s order denying Mr.
Flying Horse’s twenty-first request for judicial notice.31 	(Docket 342)
(referencing Docket 329). 	Defendant’s sole objection to the order is the
magistrate judge showed bias in favor of the government and against Mr. Flying
Horse in denying the request for judicial notice. 	Id. at pp. 1-3.
The magistrate judge properly found that “Mr. Flying Horse asks the court
to take judicial notice of legal conclusions or arguments.” 	(Docket 329 at p. 3.
The court agrees with and adopts the magistrate judge’s determination. 	This
request for judicial notice, like defendant’s prior requests, is merely his brief in
support of a legal position. 	The court is free to reach its own conclusions as to
the authority of the case law cited by a party.
The court reviewed the magistrate judge’s order denying the twenty-first
request for judicial notice and finds no error, clear or otherwise, and the order is
31 Defendant’s request for judicial notice was mistakenly captioned as his
thirteenth request. 	See Docket 319 at p. 1.
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not contrary to law. 	28 U.S.C. § 636(b)(1)(A). 	Defendant’s objection (Docket
342) is overruled. 	The court affirms the magistrate judge’s order. 	(Docket
329).
VI. 	TENTH MOTION TO DISMISS
The tenth motion to dismiss is again premised on defendant’s claim this
prosecution violates his Speedy Trial Act rights and his rights under the Sixth
Amendment. 	(Docket 282). 	Because the court intended to address Mr. Flying
Horse’s earlier motions to dismiss for violating the Speedy Trial Act and the Sixth
Amendment, the magistrate judge was advised to not address the current
motion. 	Rather, the tenth motion to dismiss would be evaluated in light of the
court’s rulings on the earlier speedy trial motions.
For the same reasons articulated in the speedy trial and Sixth Amendment
portions of this order, the court denies defendant’s tenth motion to dismiss. 	See
supra at pp. 32 & 36.
The speedy trial clock is still tolled as of the date of this order and the Sixth
Amendment evaluation of Mr. Flying Horse’s right to trial has not changed.
Defendant’s tenth motion to dismiss (Docket 282) is denied.
VII. 	ORDER
Based on the above analysis, it is
ORDERED that defendant’s objections (Docket 271) are overruled.
IT IS FURTHER ORDERED that the magistrate judge’s report and
recommendation (Docket 258) is adopted in its entirety.
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IT IS FURTHER ORDERED that defendant’s motions for entry of default
and motion to grant unopposed motions (Dockets 56, 64 & 251) are denied.
IT IS FURTHER ORDERED that defendant’s objections (Docket 277) are
overruled.
IT IS FURTHER ORDERED that the magistrate judge’s report and
recommendation (Docket 259) is adopted in its entirety.
IT IS FURTHER ORDERED that defendant’s motion to suppress (Docket
65) is denied.
IT IS FURTHER ORDERED that defendant’s objection (Docket 280) is
denied as moot.
IT IS FURTHER ORDERED that defendant’s objections (Docket 317) are
overruled.
IT IS FURTHER ORDERED that the magistrate judge’s report and
recommendation (Docket 264) is adopted as amended by this order.
IT IS FURTHER ORDERED that defendant’s first, second, third, fourth,
fifth, sixth, seventh, eighth and ninth motions to dismiss (Dockets 51, 97, 147,
148, 179, 187, 201, 218 & 250) are denied.
IT IS FURTHER ORDERED that defendant’s objections (Docket 343) are
overruled.
IT IS FURTHER ORDERED that the magistrate judge’s report and
recommendation (Docket 325) is adopted in its entirety.
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IT IS FURTHER ORDERED that defendant’s eleventh, twelfth and
thirteenth motions to dismiss and his motion to remove the federal case to state
court (Dockets 297, 301, 303 & 316) are denied.
IT IS FURTHER ORDERED that defendant’s objections (Docket 323) are
overruled.
IT IS FURTHER ORDERED that the magistrate judge’s order (Docket 262)
is affirmed.
IT IS FURTHER ORDERED that defendant’s objections (Docket 294) are
overruled.
IT IS FURTHER ORDERED that the magistrate judge’s order (Docket 263)
is affirmed.
IT IS FURTHER ORDERED that defendant’s objections (Docket 311) are
overruled.
IT IS FURTHER ORDERED that the magistrate judge’s order (Docket 265)
is adopted as amended by this order.
IT IS FURTHER ORDERED that defendant’s objections (Docket 296) are
overruled.
IT IS FURTHER ORDERED that the magistrate judge’s order (Docket 266)
is affirmed.
IT IS FURTHER ORDERED that defendant’s objections (Docket 288) are
overruled.
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IT IS FURTHER ORDERED that the magistrate judge’s order (Docket 269)
is affirmed.
IT IS FURTHER ORDERED that defendant’s motion for recusal of this
district court judge (Docket 252) is denied.
IT IS FURTHER ORDERED that defendant’s motion for the appointment of
a new judge (Docket 299) is denied.
IT IS FURTHER ORDERED that defendant’s objections (Docket 338) are
overruled.
IT IS FURTHER ORDERED that the magistrate judge’s order (Docket 326)
is adopted as amended by this order.
IT IS FURTHER ORDERED that defendant’s objections (Docket 344) are
overruled.
IT IS FURTHER ORDERED that the magistrate judge’s order (Docket 328)
is adopted as amended by this order.
IT IS FURTHER ORDERED that defendant’s objections (Docket 342) are
overruled.
IT IS FURTHER ORDERED that the magistrate judge’s order (Docket 329)
is adopted as amended by this order.
IT IS FURTHER ORDERED that defendant’s tenth motion to dismiss
(Docket 282) is denied.
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IT IS FURTHER ORDERED that a scheduling order will be filed after the
pretrial conference is held on January 21, 2022, at 1:30 p.m. 	(Docket 331).
Dated January 7, 2022.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
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