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United States v. Howard

United States District Court, D. Nebraska

September 25, 2019

UNITED STATES OF AMERICA Plaintiff,
v.
BRYAN HOWARD, Defendant.

          MEMORANDUM AND ORDER

          Richard G. Kopf, Senior United States District Judge.

         In 2014, subsequent to the execution of plea agreements and pleas of guilty, Bryan Howard was convicted, together with his girlfriend, Jessica Kraft, of conspiracy to possess with intent to distribute methamphetamine. I sentenced him to 10 years in prison. Filing no. 153.

         While in prison, Howard submitted two motions for return of seized property. Filing no. 173; Filing no. 174. He remains in prison now.

         After he filed the motions, which I construed to have been filed under Rule 41(g) of the Federal Rules of Criminal Procedure, I ordered the government to respond, and it did by submitting a response, Filing no. 176, and an index of evidence, Filing no. 177, consisting of five exhibits. I then appointed Federal Public Defender David Stickman to represent Howard. Filing no. 178. Despite the fact that I had appointed counsel for him, Howard, proceeding pro se, filed a brief, Filing no. 179, and an affidavit, Filing no. 179-1.[1]

         I then conferred with counsel and gave counsel for both sides the opportunity to submit additional briefs and affidavits, and they did. The government submitted extensive evidence, including multiple affidavits of law-enforcement officers who had been involved in this case. Filing no. 184 and Exhibits 1-13. The government also filed two additional responses. Filing no. 183; Filing no. 196. Howard submitted an additional affidavit after the government’s last evidentiary submission, this time through his appointed counsel. Filing no. 192. Howard also filed a response signed by his appointed counsel. Filing no. 191.

         On September 17, 2019, I again conferred with counsel. I asked counsel whether they objected to me taking judicial notice of everything in the court file, and neither side objected, so I now do so.

         I also queried counsel on the facts and the law, and counsel responded. The government argued that no evidentiary hearing was necessary, and the motions should be denied on their merits.[2] In contrast, Mr. Stickman, on behalf of Howard, argued that an evidentiary hearing was necessary before I made a decision.

         Filing no. 184-10 contains a helpful chart listing all of the items at issue. Also, the chart uses columns to show the government’s position as to each item. As I refer to this document throughout, and it is difficult to replicate, I attach a copy of that document to this opinion and incorporate the contents herein. Before proceeding further, the reader is well advised to examine that attachment.

         Having concluded that Howard has been heard fully and that an evidentiary hearing is unnecessary and legally unwarranted, [3] I now deny Howard’s motions. I do so for the reasons set forth below.

         Background

         The following background is largely derived from the undisputed revised presentence report of Howard. Filing no. 147. Additional background is taken from Ms. Kraft’s undisputed revised presentence report. Filing no. 134. This detail is provided because later I will need to discuss the concepts of “unclean hands” and “derivative contraband.” The information that follows will be helpful to that discussion. This detail will also be useful when discussing Howard’s claims more generally.

         Howard was a fairly big player in the high-quality methamphetamine business. He used Ms. Kraft to help him carry out his business. In so doing, the two attracted the attention of the Sarpy County Sheriff’s Office (“SCSO”).

         On September 26, 2012, Howard was arrested on local related charges. He posted bond on the related charge on October 1, 2012. On February 20, 2013, a one-count federal indictment was filed in the District of Nebraska, which charged that between August 1, 2012, and September 26, 2012, the Defendant conspired with others to distribute and possess with intent to distribute 50 grams or more of methamphetamine (actual), in violation of 21 U.S.C. §§ 841(a)(1) and 846. The indictment also included a forfeiture allegation, which included (a) a 2012 Harley Davidson Motorcycle, VIN 1HD1FBM13CB649297; (b) a 2006 GMC Sierra, VIN 2GTEK63N561324987; (c) a 2011 Interstate Kingman Cargo Trailer VIN 4RACS16256K015965; (d) $3, 320 in U.S. Currency; (e) $2, 740 in U.S. Currency; and (f) $3, 681 in U.S. Currency.

         On August 21, 2012, a confidential informant set up a methamphetamine buy from a methamphetamine source (hereinafter “CS”). However, en route to the meeting location, law enforcement pulled CS over. CS consented to a vehicle search. Officers found drug paraphernalia and approximately 28.3 grams of methamphetamine with varying purities. Laboratory tests reflected 2.5 grams of 95% pure methamphetamine (2.375 grams actual), 2.2 grams of 65% pure methamphetamine (1.43 grams actual), 3.4 grams of 75% pure methamphetamine (2.55 grams actual), and 20.2 grams of 55% pure methamphetamine (11.11 grams actual).

         CS was transported to the Sheriff’s office where CS consented to an interview. CS stated that he/she was on his/her way to meet his/her friend to sell him meth. CS said that he/she owed his/her supplier $1, 400 for the 28 grams of meth. When asked the names of his/her supplier, CS stated Bryan and Jess. CS stated he/she met Bryan five months prior and then later met his girlfriend, Jess. CS stated that Jess keeps a log of who owes them money for drugs and Jess is usually the person CS goes to in order to buy the meth after setting up the deal with Bryan. CS admitted to buying one gram from them two to three times, seven grams on ten occasions, 14 grams on one occasion, and one ounce only one time, which was the day prior. CS stated that the ounce he/she was arrested with was the ounce that he/she had gotten the day prior. CS stated he/she met Jess at the Dollar General parking lot at 90th and Maple Streets the previous night, and that CS had set up the deal by calling Bryan on the phone. Jess was identified as Jessica Kraft and Bryan as Bryan Howard.

         CS stated he/she could set up a purchase of methamphetamine from Kraft and Howard. CS owed Howard and Kraft $1, 400 for the meth that was fronted. CS could get another ounce if he/she paid the $1, 400 for the last fronted ounce. CS then made a recorded call to Howard and Kraft. Kraft told CS that they could meet at the QT gas station at 108th and L Streets. Kraft later told CS that there were police around so she was moving to the Burger King parking lot. Surveillance officers at the QT saw a dark-colored Chevy Tahoe with N.E. plates SXF 215 leave the parking lot and relocate to the Burger King. The driver was a female with long blond hair. The vehicle was registered to Jessica L. Kraft of 512 North 85th Street, Omaha, NE.

         The CS was given $1, 400 in buy money. The CS drove to the Burger King parking lot located at 108th and Mockingbird Streets and parked next to the Tahoe. The CS walked up to the driver’s-side window of the Tahoe and met with the female driver. CS got back in his/her car and drove to meet with law enforcement. The CS turned over a Burger King paper sack. The sack contained a clear plastic bag with a substance consistent with meth. Laboratory reports reflected that the substance was 27.7 grams of 85% pure methamphetamine (23.545 grams actual).

         On August 23, 2012, the CS reported that he/she could get another ounce if he/she paid the $1, 400 for the last fronted ounce. The CS first called Kraft, but Kraft said to call Howard. The CS called Howard and told Howard that the CS owed Kraft money and wanted to repay it and get another one, meaning another ounce of meth. Howard stated, “well, you’ve always owed me.” Howard agreed to meet the CS at 90th and L Streets.

         Law enforcement followed the CS to the Time Clock Lounge located at 4601 South 90th Street, Omaha, NE. The CS parked in the parking lot and a few minutes later, a male on a motorcycle, later identified as Bryan Howard, pulled up next to the CS. The CS and the male exchanged something through CS’s driver-side window. Howard then left the parking lot. Law enforcement found that the motorcycle was registered to Bryan R. Howard and Jessica L. Kraft at 512 North 85th Street, Omaha, NE. After the transaction, law enforcement seized a substance consistent with methamphetamine from CS. Laboratory reports revealed that the substance purchased from Howard was 26.4 grams of 95% pure methamphetamine (25.08 grams actual).

         On August 28, 2012, CS contacted Kraft and Howard via text message to arrange another meth buy. CS then went to Harrah’s Casino to meet with Kraft. Upon arriving at the casino, surveillance officers saw Kraft’s vehicle in the parking lot. CS parked his/her vehicle in the same area. Surveillance officers saw Kraft walking a dog near the front of the casino. Kraft met with CS in the parking lot, and then they both walked into the casino. Surveillance watched them enter Room 303. While Kraft and CS were in the room, surveillance officers could hear, via the transmitter on CS, Kraft and CS discussing money. CS and Kraft exited the casino approximately one hour later and left in their respective vehicles.

         CS then met with law enforcement and turned over a substance that was consistent with methamphetamine. Laboratory tests revealed that the substance was in fact 26.7 grams of 80% pure methamphetamine (21.36 grams actual). CS stated upon arrival in the parking lot of the casino that CS sent Kraft a text message. Kraft then met CS in the parking lot. Kraft had her pit bull named Harley with her. From the lot, CS accompanied Kraft and her dog to room 303. Inside, Kraft and the CS talked about a number of things, including Kraft having been the victim of an armed robbery. Kraft stated that she was robbed of five ounces of meth and a little money. When CS asked Kraft about protecting herself, Kraft told CS that she had a shotgun and a handgun. At one point during the meeting between CS and Kraft, the CS paid Kraft $2, 000 (which included the $600 that CS shorted Howard on August 23, 2012). Before Kraft and CS exited the room, Kraft retrieved approximately one ounce of methamphetamine from a dresser drawer, weighed the substance, put it in a plastic bag, and gave it to CS.

         In the morning of September 4, 2012, CS sent Kraft a text message to let her know that the CS would contact Kraft when CS had all the money that CS owed for the methamphetamine that Kraft fronted on August 28, 2012. CS also received a text message from Howard, who asked if CS had an IPad that Howard could buy. CS said he/she did not, but would look around for one. Later that day, at approximately 8:51 p.m., law enforcement directed CS to send Kraft a text message, “What’s Up?” Approximately 15 minutes later, Kraft responded, “I’m at the house you can come here.” CS was directed to respond “K. Be there soon. How long will you be there.” Kraft responded that she was hoping to get out of here soon-going to hotel to take a shower and meet a friend.

         After being equipped with a recording device and $1, 400 in buy money, CS drove to Kraft’s residence and entered through the front door. Approximately 15 minutes later, CS and Kraft exited the residence and departed in separate vehicles. CS met with law enforcement and stated that when CS arrived at the residence, CS sent a text message to Kraft, announcing CS’s arrival. CS then walked to the front door and was let into the residence by Kraft. Kraft and CS met in the dining room area. Kraft went to the bathroom and returned to the dining room. CS gave Kraft $1, 400, which Kraft counted. Kraft then slid an ounce of methamphetamine across the dining-room table to CS. Kraft told CS that she was going to Harrah’s to meet a friend. Kraft also stated she was staying in Room 301. CS and Kraft then exited the residence. CS turned over to law enforcement a substance consistent with methamphetamine. Laboratory tests confirmed that the substance was in fact 26.9 grams of 95% pure methamphetamine (25.555 grams actual).

         On September 18, 2012, CS informed law enforcement that he/she had been in contact with Jessica Kraft. CS stated he/she owed Kraft and Howard $1, 400 for the ounce CS got on September 4th, and that CS would be able to get fronted another ounce of meth. CS sent a text message to Howard stating, “Hey lost Jesses new number she gave me but I have what I owe if u could have her text me.” CS then made a recorded call to Howard during which Howard stated, “she said she tried to call you.” Howard then said, “she just took off, she’s got it.” CS asked Howard if he meant Jess, and he said, “yes.” CS told Howard she would be going to Big Red Keno and “I have what I owe her and I’ve been trying to get a hold of one of ...


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