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United States v. Lewis

United States District Court, N.D. Indiana, Fort Wayne Division

June 4, 2018

UNITED STATES OF AMERICA
v.
DEWAYNE LEWIS

          REPORT AND RECOMMENDATION

          SUSAN COLLINS UNITED STATES MAGISTRATE JUDGE

         Before the Court is a restated motion to suppress and request for evidentiary hearing (DE 362), together with a memorandum in support (DE 363), filed by Defendant Dewayne Lewis, seeking to suppress all evidence seized during the search of Room 211 in the Red Roof Inn in Greenwood, Indiana, on February 3, 2015.[1] Lewis alleges that the law enforcement officers knowingly made false material declarations in this case and that such actions rise to the level of “outrageous government conduct” that violates his Fifth and Fourteenth Amendment rights to due process of law. The government filed a response to the restated motion on May 4, 2018. (DE 366).

         The restated motion to suppress and request for evidentiary hearing has been referred to the undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Criminal Procedure 59(b). (DE 331). After considering the evidence and argument, I RECOMMEND that Lewis's restated motion to suppress and request for evidentiary hearing be DENIED.

         I. BACKGROUND

         On February 25, 2015, Lewis was charged by way of a single-count Indictment with possessing five kilograms or more of cocaine with the intent to distribute it, in violation of 21 U.S.C. § 841(a)(1). (DE 13). On February 26, 2015, Lewis entered a plea of not guilty to the single-count Indictment. (DE 17).

         In April and May 2015, Lewis filed various motions seeking to dismiss the Indictment and suppress evidence (DE 29-DE 31; DE 33-DE 34), which the Court consolidated together into Lewis's second amended motion to dismiss (DE 33). (See DE 56). Thereafter, Chief Judge Theresa Springmann referred the consolidated motion to me to conduct an evidentiary hearing and to issue a report and recommendation. (DE 57). An evidentiary hearing and a supplemental evidentiary hearing were held, and the parties filed various post-hearing briefs. (DE 110-DE 111; DE 136-DE 137; DE 169; DE 186; DE 189; DE 252-DE 253; DE 258-DE 260). On May 24, 2017, I issued a Report and Recommendation recommending that Lewis's consolidated motion be granted. (DE 265). The parties then filed objections to the Report and Recommendation. (DE 266-DE 268, DE 270-DE 271).

         On July 10, 2017, the Court accepted in part and rejected in part the Report and Recommendation, adopting the findings of fact in their entirety but rejecting the recommended disposition of the consolidated motion and denying Lewis's consolidated motion. (DE 272). On July 18, 2017, Lewis filed a motion to reconsider the Court's Order denying suppression, which the Court also denied. (DE 290-DE 291). Lewis then filed an interlocutory appeal of the Court's Order denying suppression, but the Seventh Circuit Court of Appeals dismissed the appeal as premature. (DE 293; DE 336).

         On November 1, 2017, Lewis filed another motion to suppress evidence, contending that the government admitted to new information during a hearing on September 14, 2017, regarding how law enforcement officers obtained his cellular telephone number. (DE 315). Lewis argued that this meant the government misled and fabricated the information and facts during an earlier evidentiary hearing held on February 9 and 10, 2016, as to how law enforcement obtained his cellular telephone number. (DE 315 at 3). On January 11, 2018, the Court denied Lewis's motion to suppress and subsequent request for an evidentiary hearing, explaining that the Court had already ruled on whether the government disclosed new information and that the Court declined to revisit the issue. (DE 340).

         Lewis, through counsel, filed the instant restated motion to suppress and request for evidentiary hearing on April 20, 2018. (DE 362). The government filed a response brief on May 4, 2018 (DE 366), and the motion is now ripe for ruling.

         II. DISCUSSION

         In the restated motion to suppress, Lewis argues that the law enforcement officers in this case have made sworn statements to this Court that are so incongruous with those officers' other statements and official reports such as “to create a colorable claim of perjury.” (DE 363 at 16). Specifically, Lewis contends that the officers' testimony at the evidentiary hearings on February 9 and 10, 2016, and January 27, 2017, is irreconcilably inconsistent with their earlier statements in the original incident reports and warrant application. (DE 363 at 18). Lewis speculates that such alleged false statements were made in an effort to conceal the use of controversial technology or questionable inter-agency information sharing by the government, which is “truly conscience-shocking, ” and as such, constitutes outrageous government conduct. (DE 363 at 20).

         The government responds that Lewis is simply requesting yet another reconsideration of the Court's prior ruling denying his motion to suppress the evidence seized during the search of his hotel room in Greenwood, Indiana, on February 3, 2015. In essence, Lewis wants another hearing to reopen cross-examination of the government's witnesses in order to impeach them with their alleged prior inconsistent statements. The government urges that Lewis's “recycled motion” and request for evidentiary hearing should be denied. (DE 366 at 1).

         A. Lewis's Request for Evidentiary Hearing

         In his supporting memorandum, Lewis states that “[a]ll facts related in this summary are either a matter of public record, a matter of record in this Court in the above-captioned cause or included in materials developed by the government and provided to Defendant in discovery.” (DE 363 at 1). Lewis then requests an evidentiary hearing “to either get these documents ...


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