United States v. Wendt

676 F.Supp.3d 712

UNITED STATES of America, Plaintiff, v. Bradley Eugene WENDT and Robert Allen Williams, Defendants.

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

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

Signed June 9, 2023

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

ORDER ON MOTIONS TO SUPPRESS, QUASH, AND RETURN PROPERTY AND APPEAL FROM MAGISTRATE JUDGE RULING

STEPHEN H. LOCHER, UNITED STATES DISTRICT JUDGE

In this heavily litigated criminal case, Defendants Bradley Eugene Wendt and Robert Allen Williams have filed motions to suppress, quash, and return seized property on the basis of alleged Fourth and Fifth Amendment violations. The parties also have numerous discovery disputes, one of which has now been appealed to the undersigned. For reasons set forth in detail below, the Court rules as follows:

(1) Wendt's Motion to Suppress (ECF¹ 127) is GRANTED IN PART and DENIED IN PART. Some of Wendt's statements during the City of Adair's investigation into his conduct are protected from use by the Government, and thus the Court must hold a Kastigar hearing to determine whether the Indictment resulted wholly from evidence independent of the protected statements. The remainder of the statements are not protected, nor were Wendt's Fourth Amendment rights violated by the scope of search warrants obtained by the Government in connection with the investigation.

(2) Williams's Motion to Quash, to Return Seized Property, and to Suppress (ECF 135), and Wendt's Joinder (ECF 139) are DENIED. The search warrants in question, on their face, do not violate the particularity requirement of the Fourth Amendment, nor were they issued without probable cause or otherwise in violation of Williams's or Wendt's constitutional rights. The Government is, however, expected to follow the privilege protocol ordered by Chief Magistrate Judge Helen Adams.

(3) Williams's Appeal from Magistrate Judge Ruling (ECF 169) is DENIED. Chief Judge Adams correctly concluded that the Court does not have the authority to grant the relief Williams seeks with respect to production of copies of witness statements, grand jury transcripts, and other materials.

I. FACTUAL BACKGROUND

A. Findings of Fact Related to Wendt's Motion to Suppress Arising Out of Alleged Fifth Amendment Violations.

The Court finds the following facts by a preponderance of the evidence. See United States v. Matlock, 415 U.S. 164, 177 n.14, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). As of May 2022, federal law enforcement officers were investigating Wendt for possible violations of federal law during and in connection with his employment with the City of Adair, Iowa. On May 18, 2022, United States Magistrate Judge Celeste Bremer issued search warrants for Facebook and Hotmail accounts associated with Wendt. (ECF 171-4; ECF 171-5.) On August 25, 2022, Chief United States Magistrate Judge Helen Adams issued search warrants for several properties, including Wendt's residence and Adair City Hall. (ECF 171-7; ECF 171-8; ECF 171-9.). The warrant for Wendt's residence authorized law enforcement officers to seize, inter alia, "mobile phones." (ECF 171-9, p. 8.)

Agents executed the warrants on August 31, 2022, as part of a coordinated operation in Adair, which is a small town in west central Iowa with a population of approximately 800 people. (Tr.² 13-14.) Unsurprisingly, the presence of federal law enforcement agents at City Hall that day attracted the attention of, among others, the town's Mayor and City Council members, some or all of whom ended up being interviewed. (Tr. 16, 20.) A law enforcement agent also spoke to a group of City officials collectively to explain the "general nature of what was happening." (Tr. 16.) There were somewhere between six and twelve law enforcement officers present, not including City of Adair police officers. (Tr. 17.)

At some point that day, an agent explained there were "no charges pending or imminent," but they were serving a warrant relating to "law letters" signed by Wendt for the acquisition of automatic weapons. (Tr. 18.) It was clear from how the warrants were executed and what the agents said that this was a criminal investigation targeting Wendt in connection with actions taken by him in his role as Police Chief. (Tr. 18-19, 21.) City Attorney Clint Fichter talked to Wendt that day to try to understand what had led to the execution of the search warrants. (Tr. 23; Tr. 66-67.) Other members of City Government also asked Wendt questions, either that day or during ensuing days or weeks. (Tr. 23-24; Tr. 66-67.) The inquiries from City officials did not necessarily arise in the context of formal City Council meetings; instead, given the unusual flurry of activity, City officials were talking about what happened in a more informal way—"like a social situation almost." (Tr. 25.) No one on that day or at any other time told Wendt that he had to answer questions or be fired. (Tr. 69, 70.)

Either during or after the execution of the search warrants on August 31, 2022, the Mayor and City Council convened a meeting. (Tr. 24.) Wendt came in and out of the meeting, first to explain that law enforcement officers were executing a search warrant and later to provide information about the nature of the investigation. (Id.). Later in the day, Wendt was placed on paid leave by the Mayor and City Administrator. (Tr. 26.)

At some point, the City Council directed City Attorney Clint Fichter to perform an investigation. (Tr. 22; Tr. 26-27.) Fichter's testimony was vague on the exact date this occurred, with him expressing confidence on one occasion that it did not happen on August 31 (Tr. 26 ("Not that day.")), but later suggesting it happened the same day Wendt was placed on paid leave, which was August 31 after all (Tr. 26-27). Fichter's confusion on dates persisted throughout his testimony, culminating with him admitting, "I'm sorry. I don't recall my dates very well." (Tr. 32.) For example, he testified that he had "partially completed" his investigation by the time of a City Council meeting on September 14, including interviewing some witnesses. (Tr. 29.) This testimony is inconsistent with the recording of the September 14 City Council meeting, which shows that Fichter had not conducted an investigation as of that date beyond a call to the U.S. Attorney's Office to try to obtain information. (ECF 74-6.)³ In Fichter's words (during the City Council meeting, not during his testimony):

There's just so much we don't know with this. I had talked with [the Mayor] about, we had reached out to a couple investigators that I've worked with that could come in and do an HR investigation. I really don't think it's that hard of a situation to investigate because pretty much what we need is—I've made a request to the U.S. Attorney's Office to get anything related to [Wendt's] workplace conduct released to us . . . what we need to do is investigate his workplace conduct . . . we should investigate his workplace conduct and then come up with some kind of written document and give [Wendt] a chance to get interviewed and all that stuff and come up with some factual based [report] and put that in front of you and let you make a decision. That will protect you as individuals and protect the City for whatever decision we make.

(Id., 9:30-11:00.) Given the inconsistency between dates identified in Fichter's testimony and reliable information elsewhere in the record, the findings of fact in the next paragraph intentionally disregard substantial portions of Fichter's testimony as to dates of relevant events. These findings instead are based on the recording of the City Council meeting on September 14 and reasonable inferences drawn therefrom.

Prior to September 14, Fichter had taken preliminary steps to try to obtain information about Wendt's situation, including communications with the U.S. Attorney's Office. Fichter had not, however, begun any formal investigation because he needed to confirm with the City Council what they wanted him to do. The fledgling investigation was discussed during a closed-session City Council meeting on September 14. During the meeting, Council members discussed whether Wendt had done anything illegal, with most saying they did not know one way or the other. (Id., 2:45-3:17.) One Council member claimed, however, that he was told by an FBI agent that Wendt "had broken no laws." (Id., 2:38-2:43.) Someone (possibly the same person) also said Wendt had "paid for everything," defended Wendt's right to use City letterhead for "law letters," and said, "Everything [Wendt] did, had to be approved by the ATF." (Id., 5:09-5:25; 6:35-6:40.) This member was highly supportive of Wendt and, in context, it seems clear that the original source of much of his information was Wendt himself. Later, a Council member (again, probably the same person) said more expressly that he talked about the situation with Wendt, who claimed to have done nothing wrong. (Id., 26:03-26:22.) A different Council member then said one of his concerns was that Wendt "sat here" and admitted selling the guns for substantially more than he paid for them, which, in the member's view, was troubling because Wendt was only able to buy the guns in the first place by purporting to do so on behalf of the City. (Id., 26:25-27:10.) More discussion ensued, in part revolving around things Wendt said, but also involving statements made by law enforcement agents, with some Council members defending Wendt and others expressing concerns. (Id., 27:11-31:00.) Ultimately, the members agreed to "leave the status quo the way it is" and authorized Fichter to "continue gathering this information." (Id., 31:10-31:40; Tr. 33.) Wendt himself was not present for the September 14 meeting; instead, he was on a pre-scheduled vacation.

The City of Adair is a "close-knit community" with "all different levels of personal relationships," and thus City officials could have received information from Wendt in a...