United States District Court, N.D. Iowa, Western Division
ORDER ON REPORT AND RECOMMENDATION
Leonard T. Strand, Chief Judge.
matter is before me on a Report and Recommendation (R&R)
(Doc. No. 39) in which the Honorable Kelly K.E. Mahoney,
United States Magistrate Judge, recommends that I grant
defendant's motion (Doc. No. 31) to suppress. Neither
party filed an objection. The time for objections has now
October 25, 2017, the grand jury returned an indictment (Doc.
No. 2) charging Joshua Michael VanWaart (VanWaart) with one
count of conspiracy to distribute a controlled substance in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),
841(b)(1)(C) and 846 and one count of possession of a firearm
by a prohibited person in violation of 18 U.S.C. §§
922(g)(3), 922(g)(8) and 924(a)(2). On March 2, 2018,
VanWaart filed a motion (Doc. No. 31) to suppress statements
he made to law enforcement in a post-arrest interview. The
Government filed a resistance (Doc. No. 33) on March 9, 2018.
Judge Mahoney held a hearing on March 21, 2018. The following
exhibits were admitted into evidence:
• Government Exhibit 1 - documents related to the
Government's request for counsel to be appointed for
defendant and request for an informal proffer
• Government Exhibit 2 - a video of defendant's
• Government Exhibit 3 - a transcript of defendant's
See Doc. No. 38. The Government also presented
testimony from Dane Wagner.
Mahoney issued her R&R (Doc. No. 39) on April 10, 2018.
Trial is scheduled to begin June 4, 2018.
Mahoney summarized the following relevant facts in her
R&R based on the exhibits and testimony presented during
the suppression hearing:
In May 2017, the United States Attorney's Office sought
to speak with VanWaart as part of an ongoing federal drug
investigation, and the court appointed counsel to represent
VanWaart. Doc. 35 at 1-2. The United States Attorney's
Office sent a letter to VanWaart's counsel, proposing an
informal proffer session with VanWaart. Doc. 35 at 3-5.
Although a proffer session was scheduled, VanWaart ultimately
refused to provide any information. Doc. 35-1 at 3-4. I take
judicial notice that his appointed counsel's
representation was terminated shortly thereafter (Docket,
17-mj-142-KEM (N.D. Iowa)). See Fed. R. Evid. 201;
Hood v. United States, 152 F.2d 431, 433 (8th Cir.
1946) (holding that the trial court “could . . . take
judicial notice of its own records in the original case,
including the docket entries”).
A federal grand jury indicted VanWaart in October 2017 on
drug and firearm charges, and a warrant issued for his
arrest. Docs. 2, 3. Shortly before midnight on November 14,
2017, Sioux City, Iowa, police officer Dane Wagner (Officer
Wagner) arrested VanWaart as authorized by the federal
warrant, as well as other outstanding state warrants. He
advised VanWaart of his Miranda rights and phoned
Drug Enforcement Administration (DEA) task force officer Todd
Peterson (Officer Peterson) to advise him that VanWaart had
been arrested. Officer Wagner asked VanWaart if he was
willing to talk to DEA agents at the police station, and
VanWaart agreed. Officer Wagner took VanWaart to the police
station and left him to be interviewed.
VanWaart was given a bottle of water while he waited in an
interview room. Around 2:00 a.m., Officer Peterson and two
other drug task force officers entered the room. An officer
quickly re-read VanWaart his Miranda rights and
asked him if he understood. He said, “yeah, ” and
when asked a second time, he nodded his head up and down. An
officer told VanWaart that he had been federally indicted
stemming from the same conduct they had tried to discuss
during the attempted proffer session. When VanWaart heard the
mandatory minimum for his charges, he became visibly upset.
VanWaart asked what proof existed, and the officer responded,
“if you don't want to talk to me and try to
cooperate” - to which VanWaart interjected, “I