United States v. Wendt

650 F.Supp.3d 672

UNITED STATES of America, Plaintiff, v. Bradley Eugene WENDT, Defendant.

No. 4:22-cr-00199-SHL-HCA-1

United States District Court, S.D. Iowa, Central Division

Signed January 11, 2023

Mikaela J. Shotwell, United States Attorney's Office, Des Moines, IA, for Plaintiff.

ORDER DENYING APPEAL OF PRETRIAL RELEASE CONDITION

STEPHEN H. LOCHER, UNITED STATES DISTRICT JUDGE

Defendant Bradley Eugene Wendt is charged in a twenty-count Indictment with criminal offenses arising out of the acquisition, sale, possession, and use of machine guns. (ECF 2.) Chief Magistrate Judge Helen Adams released Wendt pending trial on conditions pursuant to 18 U.S.C. § 3142(c). (ECF 19.) Wendt challenges one of those conditions, Condition 5(j), which prohibits him from possessing a firearm, ammunition, destructive device, or other dangerous weapon. The Court concludes that Condition 5(j) is necessary to reasonably assure the safety of any other person and the community and therefore DENIES Wendt's Emergency Appeal of Pretrial Release Condition. The Court reserves ruling, pending supplemental filings from both sides, on Wendt's separate objection to Condition 5(g) regarding contact with proposed witnesses.

I. BACKGROUND¹

Wendt is the Chief of Police for the City of Adair, Iowa. The Indictment accuses him of "exploit[ing] his position . . . to obtain and possess machine guns not lawfully available to the public." (ECF 2, ¶ 3.) The Indictment alleges, inter alia, that he made false statements to the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") on dozens of occasions to obtain machine guns that he later rented, sold, or intended to sell for personal profit despite the guns being registered to the Adair Police Department. (Id., ¶ 4.) For example, the Indictment alleges that he signed and transmitted "purchase law letters" in which he falsely stated: (1) the Adair Police Department was purchasing machine guns for official responsibilities and duties; (2) the machine guns would be the property of the Adair Police Department; and (3) the machine guns were not being acquired for purposes of resale or transfer. (Id., ¶ 19.) The Indictment alleges that these statements were false, and Wendt "acquired and sold machine guns registered to the Adair Police Department for his own personal profit and gain." (Id.)

Similarly, the Indictment accuses Wendt of signing and transmitting "demonstrating law letters" stating that the Adair Police Department wanted to obtain machine guns for "demonstration" purposes and potential future purchase. (Id., ¶ 20.) The Indictment alleges that the Adair Police Department was not really considering acquiring machine guns; instead, "the true purpose of the demonstration law letters was for WENDT to acquire machine guns for his personal use, enjoyment, profit, and gain." (Id.) The Indictment accuses Wendt of making similar false statements to help co-Defendant Robert Allen Williams and others obtain firearms. (Id., ¶¶ 22, 41-43.) The Indictment further alleges that Wendt "intended to stockpile machine guns" so he could later sell them at a profit after surrendering the Federal Firearms License with Special Occupational Tax ("FFLSOT") associated with his business, BW Outfitters. (Id., ¶ 20.)

The Indictment alleges specific examples of Wendt blurring the line between personal and official activity with respect to the acquisition, use, and sale of firearms. For example, in or about December 2020, he allegedly bought three machine guns with personal funds for $2,080 each after submitting a purchase law letter to ATF representing that the guns were "for the official duties and responsibilities of the Adair Police Department, and not for the purpose of resale or transfer." (Id., ¶ 27.) Approximately seven months later, he allegedly sold two of the firearms to a buyer in Florida for $50,000, which was paid by wire transfer to his personal bank account. (Id.) Wendt allegedly engaged in similar transactions in ensuing months. (Id., ¶¶ 28-29.) He also allegedly allowed his "significant other" to possess and shoot a machine gun registered to the Adair Police Department even though the "significant other was at no time a sworn officer with the Adair Police Department." (Id., ¶ 30.) Wendt also allegedly hosted an event in which members of the public were allowed to shoot a machine gun registered to the Adair Police Department in exchange for a fee. (Id., ¶¶ 31-32.)

In or about October 2020, Wendt allegedly acquired a belt-fed machine gun under the guise that the gun was "for demonstration to the Adair Police Department." (Id., ¶ 34.) After receiving the machine gun, however, Wendt "mounted it to his personally-owned, armored Humvee." (Id.) "At [a] machine gun shoot on April 16, 2022, WENDT charged patrons $5 per round of ammunition to shoot this machine gun." (Id.)

On August 31, 2022, law enforcement officers executed search warrants at Wendt's home, businesses, and the Adair Police Department. During the search of his home, they found, inter alia, two machine guns and entire pallets of ammunition, among many other firearms. (ECF 31-1, 31-2, 31-4, 31-5, 31-6, 31-7.) Law enforcement officers later returned the two machine guns to Wendt because they were manufactured prior to 1986 and therefore are not subject to the same legal restrictions as firearms manufactured later. (ECF 32-1, ¶¶ 12, 13.) As Wendt had not (yet) been charged with criminal offenses, there was no lawful basis for law enforcement officers to do anything other than return the machine guns to him. To this day, Wendt has "a lot" of firearms in his residence, although his counsel could not or would not identify an exact number or provide anything more than vague detail regarding the types of firearms.

Following the execution of the search warrants, but before Wendt was indicted, ATF approved Wendt's Type 07 FFL application. (Id., ¶ 20.) Wendt interprets this as an indication that the Government believes he can be trusted with firearms. According to the Government, however, ATF had no lawful basis to do anything other than approve the application because the law: (a) requires action on applications within a certain period of time; and (b) gives no discretion to ATF to deny them unless charges are pending, which, at the time, they were not. Following his Indictment, Wendt has communicated with ATF regarding a potential plan for him to "continue working in firearms but being 'hands off' as it pertains to receiving, showing, and transferring firearms and ammunition." (Id., ¶ 7, and pp. 9-10.)

There is no evidence that Wendt attempted to flee or engage in any acts of violence between the execution of the search warrant at his home and his Indictment in December 2022. Once he was indicted, the Government did not request an arrest warrant; rather, the Court issued a summons requiring Wendt to appear for his initial appearance and arraignment. (ECF 4.) Wendt complied with the summons and appeared as required on January 5, 2023. (ECF 15.) Wendt is currently suspended from his position as Police Chief for the Adair Police Department but asserts that he "expect[s] to be reinstated." (ECF 28, p. 4.) Wendt asserts that he faces an increased risk of personal harm due to his position as a police officer, "in part because of polarization among our citizens regarding the role of the police in our communities." (Id.) He argues that he "has a right under our Constitution to adequately protect himself, and there is no reason he should be denied that right." (Id.)

During the hearing, the Government stated that it has evidence of false or misleading statements by witnesses perceived to be "aligned" with Wendt. The Government alleges that these false and misleading statements are suggestive of witness tampering. The Court set deadlines for both sides to make supplemental filings relating to these allegations. If the supplemental filings contain evidentiary support for the Government's allegations, this would provide further support for the Court's denial of Wendt's Emergency Appeal of Condition 5(j). Any such evidence is not, however, necessary for the Court to conclude that the Government has already satisfied its burden of proof as to Condition 5(j), and thus the Court has chosen to issue this ruling without awaiting supplemental filings. Both sides nonetheless should still make their supplemental filings to allow the Court to evaluate Condition 5(g) relating to contact with potential witnesses. For now, Condition 5(g) remains in effect pending further order.

II. ANALYSIS

A. The Tension Between the Bail Reform Act and Constitutional Rights.

"Responding to the 'alarming problem of crimes committed by persons on release,' [S. REP. No. 98-225, at 3 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182, 3185,] Congress formulated the Bail Reform Act of 1984, 18 U.S.C. § 3141 et seq. (1982 ed., Supp. III), as the solution to a bail crisis in the federal courts." United States v. Salerno, 481 U.S. 739, 742, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). "The Act represents the National Legislature's considered response to numerous perceived deficiencies in the federal bail process." Id. The Act is designed to "give the courts adequate authority to make release decisions that give appropriate recognition to the danger a person may pose to others if released." Id. (quoting S. REP. No. 98-225, at 3).

There is tension between the Bail Reform Act and constitutional rights. For example, the Act allows defendants to be deprived of their liberty for months—or even years—while awaiting trial on charges for which the defendants may never be convicted, notwithstanding the Fifth Amendment's command that no person shall be "deprived of life, liberty, or property, without due process of law." See 18 U.S.C. § 3142(e). The Act allows detention based on the decision of a judge, notwithstanding the Sixth Amendment's enshrinement of the right to trial "by an impartial jury." See id. The Act allows the...