Summary
declining to interpret Bruen as having invalidated firearm restrictions under the Bail Reform Act absent "much clearer guidance from higher courts"
Summary of this case from United States v. LeOpinion
No. 4:22-cr-00199-SHL-HCA-1
2023-01-11
UNITED STATES of America, Plaintiff, v. Bradley Eugene WENDT, Defendant.
Mikaela J. Shotwell, United States Attorney's Office, Des Moines, IA, for Plaintiff.
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. BACKGROUND
Much of the Background section comes from the allegations of the Indictment. An Indictment is merely an accusation, and Wendt is entitled to the presumption of innocence. Nonetheless, the Court is required to consider the "nature and circumstances of the offense charged," among other factors, when analyzing conditions of release. See 18 U.S.C. § 3142(g). Moreover, as discussed below, the Government presented evidence to support some of the allegations in the Indictment.
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 judge's detention decision to be based on hearsay, notwithstanding the Sixth Amendment's guarantee of a person's right "to be confronted with the witnesses against him." See id., § 3142(f) ("The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the [detention] hearing."). In making the detention decision, the Act sometimes requires the judge to presume detention is necessary based solely on the nature of the alleged crime, with the defendant then bearing the burden of overcoming the presumption. See id., § 3142(e)(2)-(3). This is in stark contrast to the burden of proof in a jury trial, where the Government must prove all elements of the offense. And even when defendants are not subject to the presumption of detention, judges nonetheless will detain them if the Government is able to satisfy a lower burden of proof—either clear and convincing evidence or preponderance of the evidence, depending on the basis for the request for detention—than the "beyond a reasonable doubt" standard that applies in a criminal trial pursuant to the Sixth Amendment. See id., § 3142(e)(1).
Nonetheless, the Supreme Court has upheld the constitutionality of the Bail Reform Act. Salerno, 481 U.S. at 755, 107 S.Ct. 2095. The Court explained that "the Government's regulatory interest in community safety can, in appropriate circumstances, outweigh an individual's liberty interest." Id. at 748, 107 S.Ct. 2095. Furthermore, "[w]hile the Government's general interest in preventing crime is compelling, even this interest is heightened when the Government musters convincing proof that the arrestee, already indicted or held to answer for a serious crime, presents a demonstrable danger to the community. Under these narrow circumstances, society's interest in crime prevention is at its greatest." Id. at 750, 107 S.Ct. 2095. "When the Government proves by clear and convincing evidence that an arrestee presents an identified and articulable threat to an individual or the community, we believe that, consistent with the Due Process Clause, a court may disable the arrestee from executing that threat." Id. at 751, 107 S.Ct. 2095.
The Eighth Circuit has similarly upheld the constitutionality of Bail Reform Act provisions imposing restrictions on a person's liberty short of detention. In United States v. Stephens, 594 F.3d 1033, 1038-39 (8th Cir. 2010), the Eighth Circuit rejected a facial constitutional challenge to provisions of the Bail Reform Act, as amended by the Adam Walsh Act, requiring curfew and electronic monitoring for defendants facing certain types of charges. Stephens explained, inter alia, that "Salerno, in upholding the Bail Reform Act, afforded Congress great leeway when constructing a legal framework for deciding whether to detain and how to release those charged with federal crimes." Id. at 1039.
As relevant here, Congress exercised its leeway by directing judges to order pretrial release on personal recognizance or execution of an unsecured appearance bond subject to the conditions that the person: (a) not commit a federal, state, or local crime during the period of release; and (b) cooperate in the collection of a DNA sample if authorized by 42 U.S.C. § 14135a. 18 U.S.C. § 3142(b). However, if the judge "determines that [such] release will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community," the judge may order additional conditions of release. Id., § 3142(c)(1). The judge must impose "the least restrictive further condition, or combination of conditions, that such judicial officer determines will reasonably assure the appearance of the person as required and the safety of any other person and the community." Id., § 3142(c)(1)(B). Congress identified thirteen conditions for judges to consider, including, inter alia, that the person: "maintain employment, or, if unemployed, actively seek employment," id., § 3142(c)(1)(B)(ii); "maintain or commence an educational program," id., § 3142(c)(1)(B)(iii); "abide by specified restrictions on personal associations, place of abode, or travel," id., § 3142(c)(1)(B)(iv); "avoid all contact with an alleged victim of the crime and with a potential witness who may testify concerning the offense," id., § 3142(c)(1)(B)(v); "refrain from possessing a firearm, destructive device, or other dangerous weapon," id., § 3142(c)(1)(B)(viii); and "refrain from excessive use of alcohol, or any use of a narcotic drug or other controlled substance . . . without a prescription by a licensed medical practitioner," id., § 3142(c)(1)(B)(ix).
Like the loss of liberty that occurs when a defendant is detained, the imposition of conditions of release will often impact constitutional rights. Any restriction on personal associations, for example, is an unmistakable limitation on First Amendment rights. See Americans for Prosperity Found. v. Bonta, — U.S. —, 141 S. Ct. 2373, 2382, 210 L.Ed.2d 716 (2021) ("This Court has 'long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others.' ") (quoting Roberts v. U. S. Jaycees, 468 U.S. 609, 622, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984)). The restrictions on travel and place of abode likewise impair the exercise of constitutional rights. See Saenz v. Roe, 526 U.S. 489, 501-02, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999) (discussing constitutional right to travel); accord id. at 511-12, 119 S.Ct. 1518 (Rehnquist, C.J., dissenting) ("The right to travel clearly embraces the right to go from one place to another, and prohibits States from impeding the free interstate passage of citizens."). And, of course—as relevant here—a restriction on firearm possession, if imposed, will limit the defendant's exercise of Second Amendment rights. See, e.g., N. Y. State Rifle & Pistol Ass'n, Inc. v. Bruen, — U.S. —, 142 S. Ct. 2111, 2122, 213 L.Ed.2d 387 (2022); District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).
B. To the Extent Wendt Is Raising a Facial Challenge to the Bail Reform Act, the Court Rejects it.
It is somewhat unclear whether Wendt is arguing that it is per se unconstitutional for a court to impose a firearms restriction as a condition of release pursuant to 18 U.S.C. § 3142(c)(1)(B). His original filing (ECF 28) did not purport to raise a facial constitutional challenge, but his Reply cited Bruen and argued that "[t]he United States does not have an historical tradition of prohibiting persons who were accused, but not convicted of, felonies from possessing firearms. As such, this restriction is unconstitutional." (ECF 32, p. 5). During the hearing, his counsel similarly alternated between arguing such a restriction would be unconstitutional "as applied" and arguing there is no historical tradition of prohibiting firearms by persons accused of crimes. In an abundance of caution, the Court will assume Wendt is raising a facial challenge.
In United States v. Salerno, the Supreme Court held that a party making a facial challenge to the Bail Reform Act "must establish that no set of circumstances exists under which the Act would be valid." 481 U.S. at 745, 107 S.Ct. 2095. Applying this test, Wendt's facial challenge fails because there are conceivable circumstances in which a firearms restriction would be valid. The Supreme Court has never, for example, held that felon-in-possession statutes are unconstitutional. See Heller, 554 U.S. at 626-27, 128 S.Ct. 2783 ("[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."). Accordingly, the Court lawfully could impose a pretrial firearms restriction on a defendant who had previously been convicted of a felony offense. It follows that the firearms restriction authorized by 18 U.S.C. § 3142(c)(1)(B)(viii) is not facially invalid. See Stephens, 594 F.3d at 1038 (rejecting facial challenge to Adam Walsh Act amendments to Bail Reform Act because "circumstances exist when the mandates of § 216 of the Adam Walsh Act are constitutionally valid").
Wendt suggests that Bruen requires a different analysis than Salerno because it directs courts to focus on whether a firearm regulation "is consistent with this Nation's historical tradition of firearm regulation." 142 S. Ct. at 2126. At least two courts have conducted such an analysis in the context of the Bail Reform Act subsequent to Bruen. See United States v. Perez-Garcia, No. 22-CR-1581-GPC, 2022 WL 17477918, (S.D. Cal. Dec. 6, 2022); United States v. Slye, No. 1:22-MJ-144, 2022 WL 9728732 (W.D. Pa. Oct. 6, 2022). Both rejected facial challenges to the Act after concluding there is a "longstanding historical tradition" of analogous regulations to the pretrial restriction on possessing firearms. See Perez-Garcia, 2022 WL 17477918, at *6; Slye, 2022 WL 9728732, at *3.
The Court finds the reasoning of Perez-Garcia and Slye persuasive and therefore would follow it if called upon to do so. The Court need not do so here, however, because the analysis in those cases only applies if one first concludes that Bruen discarded the approach employed by Salerno and Stephens to evaluating the facial constitutionality of the Bail Reform Act. This Court is unwilling, without much clearer guidance from higher courts, to conclude the Supreme Court sub silentio intended to overrule Salerno and Stephens (among other cases) when it decided Bruen. "If a precedent of [the Supreme] Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, [lower courts] should follow the case which directly controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989).
Holding otherwise would call into question not just the constitutionality of firearm restrictions for pretrial releasees, but also the constitutionality of the entire Bail Reform Act. Bruen held that Second Amendment rights are not "subject to an entirely different body of rules than the other Bill of Rights guarantees." 142 S. Ct. at 2156 (quoting McDonald v. City of Chicago, Ill., 561 U.S. 742, 780, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (plurality opinion)). Thus, if courts are categorically forbidden from imposing restrictions on firearm possession pending trial, they likewise presumably are forbidden from imposing restrictions on First Amendment rights or—worse yet—taking away a person's liberty altogether other than in a jury trial where the full panoply of Sixth Amendment rights applies. See Bruen, 142 S. Ct. at 2156 (concluding Second Amendment rights should be evaluated in the same way as First and Sixth Amendment rights). Yet Salerno upheld the constitutionality of the Bail Reform Act even though the Act does just that. 481 U.S. at 755, 107 S.Ct. 2095; see also 18 U.S.C. § 3142(e)-(f) (permitting detention based on the ruling of a single judge in a hearing in which "[t]he rules concerning admissibility of evidence in criminal trials do not apply"); Slye, 2022 WL 9728732, at *2 ("Inherent in this severe restriction of liberty [i.e., pretrial detention] is the temporary abridgement of numerous core constitutional rights including, but not limited to, freedom of speech (to the degree that such speech could undermine order and security in the prison), freedom of association, reasonable expectations of privacy, and, apropos to the instant case, the right to bear arms."). This Court, sitting at the lowest rung of the federal judiciary, is not prepared to overrule thirty-five years of precedent.
C. Governing Legal Standards and Principles Under the Bail Reform Act.
With the issue of facial constitutionality off the table, the question turns to what the Government must prove—and by what standard of proof—in order to justify a firearms restriction in the context of a particular defendant. The Bail Reform Act provides some guidance, but not as much as it might seem at first glance. 18 U.S.C. § 3142(c)(1) states:
If the judicial officer determines that [release on personal recognizance or unsecured appearance bond] will not reasonably assure the appearance of the person as required or will endanger the safety of any other person or the community, such judicial officer shall order the pretrial release of the person . . . subject to the least restrictive further condition, or combination of conditions, that such judicial officer determines will reasonably assure . . . the safety of any other person and the community . . . .Parsing the language reveals two parts to the inquiry, neither of which is connected to an explicit standard of proof. The Court therefore will apply the preponderance of the evidence standard. United States v. Orta, 760 F.2d 887, 891 (8th Cir. 1985) (applying preponderance standard to portions of the Bail Reform Act for which no express standard is stated).
18 U.S.C. § 3142(f)(2) states that the Government must present "clear and convincing evidence" before the Court may detain a defendant pending trial. Congress conspicuously chose, however, not to include this standard in the portion of the statute regarding release on conditions. See id. at § 3142(c). In context, Congress clearly wanted to give judges greater discretion to determine appropriate conditions of release than to detain someone altogether.
First, the judicial officer must determine whether release without conditions "will endanger the safety of any other person and the community." The word "endanger" means to "bring into danger or peril" or "create a dangerous situation," and thus courts do not interpret the Bail Reform Act as requiring proof certain that a defendant actually will harm someone unless additional conditions of release are imposed. See, e.g., United States v. King, 849 F.2d 485, 487 n.2 (11th Cir. 1988) ("The term 'dangerousness,' as used in the Bail Reform Act of 1984, has a much broader construction than might be commonly understood in everyday parlance."); United States v. Abad, 350 F.3d 793, 798-99 (8th Cir. 2003) (ordering pretrial detention despite the defendant's absence of criminal history). Instead, the question is whether release without additional conditions creates a meaningful additional level of danger to the community as compared to release with additional conditions.
Endanger, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/endanger (last visited Jan. 11, 2023).
Second, if the showing is made that one or more additional conditions are appropriate, the judge then must determine the "least restrictive further condition, or combination of conditions, that . . . will reasonably assure . . . the safety of any other person and the community." 18 U.S.C. § 3142(c)(1)(B). This language points in competing directions. On one hand, the obligation to identify the "least restrictive" conditions indicates Congress does not want judges to go overboard. Meaning: there must be a valid reason for each condition. On the other hand, the words "reasonably assure" are used in connection with the "safety of any other person and the community" and therefore make clear that Congress was deeply concerned about the safety of others; after all, to "assure" something means, inter alia, "to make sure or certain" or "to make certain the coming or attainment of." The desire for a reasonable level of "certainty" as to the safety of others shows Congress does not want judges to be hesitant in imposing conditions that are likely to help ensure the protection of the community. See also Salerno, 481 U.S. at 742, 107 S.Ct. 2095 (explaining that Congress was "[r]esponding to 'the alarming problem of crimes committed by persons on release' " when it enacted the Bail Reform Act) (quoting S. REP. No. 98-225, at 3). This is particularly true given that the conditions of release are only temporary. Thanks to the Speedy Trial Act, the defendant either will be convicted (in which case the judge will impose a sentence) or the charges will be dismissed through acquittal or otherwise (in which case the conditions of release will become null) in a relatively short period of time. See Perez-Garcia, 2022 WL 17477918, at *6 (emphasizing the temporary nature of pretrial restrictions).
Assure, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/assure (last visited Jan. 11, 2023).
Section 3142(g) provides a list of factors for judges to consider when deciding whether detention or release is appropriate and, if the latter, choosing which conditions to impose. These factors include:
(1) the nature and circumstances of the offense charged, including whether the offense is a crime of violence, a violation of section 1591, a Federal crime of terrorism, or involves a minor victim or a controlled substance, firearm, explosive, or destructive device;
(2) the weight of the evidence against the person;
(3) the history and characteristics of the person, including—
(A) the person's character, physical and mental condition, family ties, employment, financial resources,
length of residence in the community, community ties, past conduct, history relating to drug or alcohol abuse, criminal history, and record concerning appearance at court proceedings; and
(B) whether, at the time of the current offense or arrest, the person was on probation, on parole, or on other release pending trial, sentencing, appeal, or completion of sentence for an offense under Federal, State, or local law; and
As in other areas of law where discretion exists, judges must apply a healthy dose of common sense when applying these factors. See, e.g., United States v. Zhang, 55 F. 4th 141, 150 (2d Cir. 2022); United States v. Fattah, 351 F. Supp. 3d 1133, 1139 (N.D. Ill. 2019).
(4) the nature and seriousness of the danger to any person or the community that would be posed by the person's release . . .
The Eighth Circuit has scrutinized postconviction conditions of supervised release more carefully when they restrict constitutional rights. See United States v. Hobbs, 845 F.3d 365, 368 (8th Cir. 2016) ("The sentencing court's wide discretion notwithstanding, 'we are particularly reluctant to uphold sweeping restrictions on important constitutional rights.' ") (quoting United States v. Crume, 422 F.3d 728, 733 (8th Cir. 2005)). This Court believes a stronger justification is similarly necessary for pretrial restrictions that impact a defendant's constitutional rights, such as Condition 5(j). See United States v. Martinez, 4:21-cr-00107-SMR-HCA, 2021 WL 4169789, at *2 (S.D. Iowa Sept. 13, 2021) (applying heightened scrutiny to pretrial release conditions that result in sweeping restrictions on constitutional rights).
D. Condition 5(j) Is Part of the Least Restrictive Combination of Conditions that Will Reasonably Assure the Safety of Any Other Person and the Community.
Wendt objects to only two of his conditions of release, the firearms restriction and a restriction on his ability to communicate with potential witnesses. He therefore essentially concedes that release on personal recognizance or a mere unsecured appearance bond is insufficient to satisfy the requirements of 18 U.S.C. § 3142(c). Even if he did not intend to make such a concession, however, the Court would conclude that release without additional conditions will endanger the safety of any other person or the community. Wendt is accused of a multi-year course of conduct involving more than a dozen false statements in connection with the trafficking of highly-regulated machine guns. He faces up to five years' imprisonment on each of the nineteen false statement counts, as well as ten years' imprisonment on the unlawful possession count, for a total maximum exposure of 105 years' imprisonment. While it is, of course, highly unlikely that Wendt would receive such a sentence even if convicted of every offense, the mere fact that Congress has authorized such a lengthy term of imprisonment helps demonstrate the seriousness of the alleged crimes and the risks they create for the community. Moreover, in the context of the Bail Reform Act, "[d]anger . . . was not meant to refer only to the risk of physical violence." United States v. Tortora, 922 F.2d 880, 884 (1st Cir. 1990). Thus, even if the charged offenses were viewed solely as fraud-type offenses, additional conditions of release nonetheless would be necessary to ensure, among other things, that no additional acts of fraud are committed.
In any event, it is an undeniable reality that the period when an indictment is pending is "a volatile period during which the stakes and stresses of pending criminal charges often motivate defendants to do violence to themselves or others." United States v. Kays, No. CR-22-40-D, 624 F.Supp.3d 1262, 1268 (W.D. Okla. Aug. 29, 2022) (quoting United States v. Khatib, No. 12-CR-190, 2012 WL 6086862, at *4 (E.D. Wis. Dec. 6, 2012)). Heightened conditions of some sort beyond mere personal recognizance or an unsecured appearance bond are therefore appropriate in circumstances like those present here to help mitigate the risk of both physical and non-physical forms of danger to the community. The question turns, then, to whether a firearms restriction is part of the "least restrictive" combination of conditions here that "will reasonably assure . . . the safety of any other person and the community." 18 U.S.C. § 3142(c)(1)(B). After careful and individualized review, the Court concludes it is.
The analysis begins with the "nature and circumstances of the offense charged, including whether the offense . . . involves a . . . firearm, explosive, or destructive device." Id., § 3142(g)(1). The inclusion of the word "firearm" is conspicuous and indicates Congress believed cases involving firearms were likely to warrant greater restrictions than other cases. Thus, right out of the gate, the Court must give serious consideration to a firearm restriction given that the offenses alleged against Wendt obviously involve firearms. Moreover, the offense does not involve just any type of firearm; instead, it involves machine guns, which the Eighth Circuit has characterized as "dangerous and unusual weapons." United States v. Fincher, 538 F.3d 868, 874 (8th Cir. 2008). Other courts have similarly described machine guns as "distinctively dangerous," United States v. Cruz-Olavarria, 919 F.3d 661, 665 (1st Cir. 2019), "particularly dangerous," Lomont v. O'Neill, 285 F.3d 9, 11 (D.C. Cir. 2002), "especially dangerous," RSM, Inc. v. Herbert, 466 F.3d 316, 318 (4th Cir. 2006), "exceedingly dangerous," United States v. One (1) Palmetto State Armory PA-15 Machinegun Receiver/Frame, Unknown Caliber Serial No . LW001804 , 822 F.3d 136, 142 (3d Cir. 2016), and "primarily weapons of war [that] have no appropriate sporting use or use for personal protection," United States v. Jennings, 195 F.3d 795, 799 n.4 (5th Cir. 1999) (quoting S. REP. No. 90-1501, at 28 (1968)).
The fact that the offense involves dozens of allegedly false statements weighs further in favor of the firearm restriction. Wendt assures the Court, through his counsel, that he can be trusted to possess firearms while awaiting trial. It is difficult to accept this assurance in a situation where he is accused of having lied to authorities dozens of times in recent years regarding his (or his Department's) intended use of firearms. See, e.g., Fattah, 351 F. Supp. 3d at 1139 (rejecting defendant's assurances regarding pretrial release conditions in light of evidence of "prior lies and deceptions to authorities"). The Court concludes that the nature and circumstances of the offenses weigh strongly in favor of imposing Condition 5(j).
This conclusion is unchanged by the fact that Wendt's alleged crimes revolve around the acquisition and sale of firearms, rather than acts of violence. Congress regulates machine guns more closely than most other firearms because they are so dangerous. See, e.g., Jennings, 195 F.3d at 799. Wendt's offenses, if proven, would mean that he exploited federal law on dozens of occasions to cause more of these highly dangerous weapons to be available in the community than otherwise would have been. In these circumstances, even if Wendt never used or directly threatened anyone with a machine gun, the Court has little difficulty concluding that the nature and circumstances of the alleged offense weigh strongly in favor of a firearms restriction.
The Court's conclusion is also not weakened by the fact that federal law only makes it a criminal offense for a person under indictment to "ship," "transport," or "receive" a firearm or ammunition; ongoing possession is not enough. See 18 U.S.C. § 922(n). As an initial matter, Wendt is charged with, inter alia, offenses arising out of the sale and shipment of machine guns that he previously represented were not being acquired for purposes of resale. Thus, although he claims merely to want to "possess" firearms, the Court has serious concerns that, consistent with alleged past conduct, he may attempt to sell or transport firearms in violation of § 922(n). The fact that he has, to date, been so vague about the number and type of firearms in his home enhances this risk. Moreover, and in any event, any guidance the Court might take from Congress's decision in § 922(n) not to criminalize mere possession pending trial is more than outweighed by Congress's specific direction in § 3142(c)(1)(B)(viii) for judges to consider a restriction on possession of firearms as a condition of release. Viewed together, these statutes appear to show, at most, that Congress did not want to prohibit firearm possession by pretrial releasees in every case, but rather expected an individualized determination like the one the Court is making here.
The Court next must consider the weight of the evidence against Wendt. See 18 U.S.C. § 3142(g)(2). The Government has not gone into extensive detail regarding the strength of its evidence, but it did provide Facebook or text messages from Wendt stating that he is "building machine gun aresensal [sic.]" and that "[m]achine guns are worth bank money. Paid 4k for mp5sd can sell for 20k." (ECF 31-3.) His messages further discussed his intention to "Build up bunch machine guns then once you retire or turn in your FFL you can sell them to any class three dealer but only then [ ] Or just change name on ffl lol [ ] Loop holes [ ] Perfect legal ATF guy told me how to do it." (Id.) These messages, considered in conjunction with Wendt's own filings, suggest the baseline facts alleged in the Indictment are largely undisputed—i.e., that Wendt indeed made statements to ATF indicating the machine guns were for use or demonstration by the Adair Police Department but later sold or transferred those firearms in private transactions. The fighting issue will be whether his statements to ATF were false or if, in his words, he merely took lawful advantage of a "loophole." Under the circumstances, the Court concludes the weight of the evidence supports the imposition of the firearms restriction, although not overwhelmingly so.
The Court next considers Wendt's history and characteristics, much of which is favorable to him. See 18 U.S.C. § 3142(g)(3). For example, he has more than twenty years' experience as a law enforcement officer, no criminal history other than driving violations, and no apparent issues with substance abuse. He also has significant family and community ties, as well as a stable residence. There is no evidence of violent conduct (whether involving firearms or otherwise) since law enforcement officers executed search warrants at Wendt's home and businesses in August 2022 or the filing of formal charges in mid-December 2022. These facts support less restrictive conditions of release.
There are, however, important countervailing considerations. For example, Wendt's track record as an upstanding law enforcement officer is called into serious question by the allegations that he has been abusing his authority over the past two-plus years to enrich himself through commercial trafficking in machine guns. Moreover, Wendt refused to provide financial information to the United States Probation Office and provided testimony in a recent state court custody case that an Iowa state court judge found to be "less than forthright" with respect to the financial aspects of his gun business. See Wendt v. Peterson, No. 20-0060, 2020 WL 4814153, at *3 (Iowa Ct. App. Aug. 19, 2020). The Iowa Court of Appeals explained:
Wendt next argues that, even if we decline to modify the physical care arrangement, we should reduce his child support obligation. Wendt's argument focuses on his income. Wendt contends the court should have only considered his employment income of $58,546. Wendt argues the court should not have credited him with $20,000 estimated income from BW Outfitters.Id. BW Outfitters is, of course, the same business that features heavily in the scheme allegedly perpetrated by Wendt that allegedly resulted, inter alia, in personal profits of almost $75,000 from the sale of four machine guns in July 2021 and February 2022 alone. (ECF 2, ¶¶ 27-28.) Wendt's failure to be forthright about the financial affairs of his gun business is part of his "history and characteristics" and must be taken into account in determining appropriate conditions of release.
We disagree. BW Outfitter's gross sales exceed $4,000,000 per year. Wendt is the president and sole shareholder. And the district court found "the evidence overwhelming that" Wendt "is receiving income from his business to purchase/subsidize real estate investments, home improvements, purchase of other equipment, et cetera." It is true this income has not always been clearly documented. Moreover, as the district court expressly found, Wendt was "less than forthright" when answering questions "regarding his earnings and ability to accumulate assets on a relatively modest salary that would not appear to justify these expenditures." So, like the district court, we find it "difficult" to say exactly how much income Wendt receives from his business. It is not disputed, however, that the business paid Wendt $60,000 in 2016. Based on the totality of the record, including the district court's express findings, we decline to disturb the court's conclusion that $20,000 in business income "should be included" in Wendt's personal income "for child support calculation purposes."
His lack of candor continues to this day. As noted above, Wendt's counsel either could not or would not say how many guns Wendt has his home, nor did he provide anything more than vague information about the types of firearms there. Moreover, Wendt is insistent that he be permitted to retain all his firearms even though this is presumably far more than one person could possibly need for legitimate self-defense. Given his failure to identify how many guns he even has, it would be relatively easy for Wendt to transfer or sell one or more of those firearms without detection, which is a criminal offense. See 18 U.S.C. § 922(n). The incentive to commit such an offense is particularly strong given that Wendt is currently on unpaid suspension from his position as Chief of Police. This incentive, considered in conjunction with Wendt's lack of candor, causes the Court to conclude that his history and characteristics, although mixed, ultimately weigh somewhat in favor of imposing Condition 5(j).
The fourth and final factor—the nature and seriousness of the danger to any person or the community that would be posed by allowing Wendt to possess firearms while on release—also weighs in favor of Condition 5(j), although much more strongly. Courts have recognized that the "stakes and stresses of pending criminal charges often motivate defendants to do violence to themselves or others." Kays, 624 F.Supp.3d at 1268 (quoting Khatib, 2012 WL 6086862, at *4). The Court hopes, of course, that Wendt would never use a firearm in such a fashion, but mere "hope" is not enough in a situation where the facts and circumstances show a person who has been "less than forthright" regarding his gun business, refuses to provide details regarding the number and nature of weapons in his home, and stands accused of making dozens of false statements in connection with the acquisition and sale of "exceedingly dangerous" machine guns. See One (1) Palmetto State Armory PA-15 Machinegun, Unknown Caliber Serial No . LW001804 , 822 F.3d at 142. The sheer number of firearms in his possession is also problematic. Other courts have used the number of guns in a defendant's possession as a basis for concluding detention is appropriate. See, e.g., United States v. Carrillo Lopez, Case No. MJ20-0020-JCC, 2020 WL 3414674, at *4 (W.D. Wash. June 22, 2020) (affirming order of detention for defendant in light of, inter alia, the number of guns found in his residence); United States v. Focia, No. 2:15cr17-MHT, 2015 WL 1387949, at *2 (M.D. Ala. Mar. 25, 2015) (same). The same fact also supports a condition of release short of detention.
Moreover—and more importantly—the stakes for public safety are off the charts, as illustrated by the many reported instances in recent months alone in which defendants awaiting trial have committed or attempted to commit deadly acts of violence, often against law enforcement officers. See, e.g., Anna Liz Nichols, Detroit Man Accused of Pointing Gun at Warren Police Charged, THE DETROIT NEWS (Jan. 4, 2023, 5:28 PM) (pretrial releasee allegedly fired at officers); Sam Kraemer, West Bend Poll Knife Threats, Man Was Out on Bail, FOX6 MILWAUKEE (Nov. 9, 2022, 9:11 PM) (pretrial releasee allegedly threatened poll workers with knife); Kelli Smith & Hojun Choi, Officers Fatally Shoot Man Out On Bond After Police Say He Fired at Them in South Dallas, THE DALLAS MORNING NEWS (Oct. 31, 2022, 6:38 PM) (pretrial releasee allegedly fired at officers); Rosalio Ahumada, Suspects Faced Gun-related Charges in Other Cases Before Deadly Old Sacramento Shooting, THE SACRAMENTO BEE (July 19, 2021, 2:36 PM) (pretrial releasee allegedly participated in shootout that resulted in two deaths and four injuries). Sadly, as recent history in this relatively small district shows, Wendt's status as a law enforcement officer does not per se immunize him (or the public) from potential acts of violence during the stressful period in which criminal proceedings are pending. See Matt Kelley, Death of Former Des Moines Cop and Woman Called Murder-Suicide, RADIO IOWA (April 20, 2015) ("Urbandale Police Sergeant Gary Lang has confirmed the man who carried out a murder-suicide over the weekend is a former Des Moines Police officer who was facing a [federal] prison sentence.").
https://www.detroitnews.com/story/news/local/macomb-county/2023/01/04/detroit-manaccused-of-pointing-gun-at-warren-police-charged/69778985007/.
https://www.fox6now.com/news/west-bend-poll-knife-threats-man-bail.
https://www.dallasnews.com/news/2022/10/30/dallas-police-shoot-person-who-charged-and-fired-gun-at-officers-authorities-say/.
https://amp.sacbee.com/news/local/crime/article252882043.html.
https://www.radioiowa.com/2015/04/20/death-of-former-des-moines-cop-and-woman-called-murder-suicide/.
The Court acknowledges, of course, the important Second Amendment right to "armed self-defense," Bruen, 142 S. Ct. at 2128, which Wendt emphasizes by arguing that, as a law enforcement officer, he is "subject to increased risk" and "increasing threats, in part because of polarization among our citizens regarding the role of the police in our communities." (ECF 28, p. 4.) The problem for Wendt, however, is that he is not asking to retain one or two firearms, but rather an entire arsenal. In context, his insistence on retaining so many firearms raises concerns that he is less interested in "self-defense" than in keeping open the possibility of making future transfers of those firearms or, worse yet, using them to intimidate potential witnesses, probation officers, or others. This is, after all, a person who allegedly mounted a machine gun onto his personal, armored Humvee. And while Wendt presumably would claim that the Humvee incident was not meant to intimidate anyone, probation officers and potential witnesses (among others) reasonably might interpret it otherwise. These individuals likely could not help but be intimidated if Wendt were allowed to retain possession of dozens of firearms pending trial on serious gun trafficking charges. The Court therefore cannot conclude that his Second Amendment rights prohibit the imposition of a firearms restriction that otherwise is clearly appropriate under 18 U.S.C. § 3142(c)(1)(B).
Although not outcome-determinative, the Court also rejects Wendt's self-defense argument for a separate reason. The Court agrees that law enforcement officers like Wendt are, regrettably, at greater risk of harm than the average member of the public. The same, however, is true of many other defendants in federal criminal cases. There is, for example, a "well-established connection between violent crime and the illegal drug trade," United States v. Fife, 624 F.3d 441, 447-48 (7th Cir. 2010), and thus accused drug dealers can credibly claim to have a heightened need for self-defense, particularly if co-conspirators believe they might "flip" and begin cooperating with the government. See, e.g., United States v. Johnson, 495 F.3d 951, 958-59 (8th Cir. 2007). Yet it is difficult to imagine a scenario, short of the Bail Reform Act being struck down altogether, in which the Second Amendment rights of an accused drug dealer would prevail over the congressional mandate in § 3142(c)(1)(B) for judges to impose restrictions that "reasonably assure" the safety of the community. See Heller, 554 U.S. at 626, 128 S.Ct. 2783 ("Like most rights, the right secured by the Second Amendment is not unlimited."). The Court cannot see why the self-defense needs of an accused firearms trafficker—whether he is a law enforcement officer or not—should receive more favorable treatment than the self-defense needs of an accused drug dealer or, for that matter, the self-defense needs of defendants accused of any other manner of crimes. Indeed, the main thrust of Heller and Bruen is that the Second Amendment confers an individual right for everyone to keep and bear arms, not just members of the military or law enforcement. See Heller, 554 U.S. at 595, 128 S.Ct. 2783.
Wendt tries to counter the Court's concerns by arguing that only "law-abiding" citizens have a constitutional right to possess firearms, see Bruen, 142 S. Ct. at 2122, and emphasizing that he is presumptively "law-abiding" because he has no criminal history and is entitled to the presumption of innocence. The implication in his argument is that accused drug dealers and other categories of defendants are not "law-abiding" and therefore may be treated differently than accused firearms traffickers. But this is clearly not so: the presumption of innocence applies to everyone, and many defendants have no criminal history. So either all criminal defendants—accused drug dealers, firearms traffickers, child pornographers, attempted murderers, etc.—must be considered "law-abiding" for Second Amendment purposes (assuming they have no prior felony convictions) and allowed to keep their firearms pending trial, or else the Second Amendment contains enough leeway to allow pretrial restrictions on firearm possession for such persons in appropriate circumstances. Short of Heller or Bruen being interpreted as overruling Salerno, the Court adopts the latter conclusion.
Stated differently, if Wendt's need for a firearm for self-defense is sufficient to preclude the imposition of a firearm restriction even when the strong weight of the § 3142(g) factors counsels otherwise, then defendants in many other types of cases likely will be entitled to retain firearms as well. The Court does not interpret Heller or Bruen as requiring this; instead, it concludes that Salerno remains good law and § 3142(g) continues to govern the imposition of conditions of release.
This is not to say that Wendt's self-defense concerns and Second Amendment arguments are not given considerable weight. As noted above, the Court believes a condition of release that limits a person's constitutional rights needs substantially greater justification than one that does not. The circumstances here, however, are more than sufficient to satisfy this heightened burden by a preponderance of the evidence—or even clear and convincing evidence. The Court rejects Wendt's arguments to the contrary.
In sum, after an individualized determination, the factors set forth in § 3142(g) collectively weigh strongly in favor of the conclusion that Condition 5(j) is necessary to reasonably assure the safety of the community pending trial. The Court further concludes that the more-narrowly-tailored alternative proposed by Wendt of allowing him to keep his firearms in his gun vault with only the Probation Office having the passcode is inadequate because, inter alia, Wendt has been "less than forthright" in the past regarding matters involving his firearms. The Court simply does not trust that Wendt would truly lack access to the firearms given that: (a) they would remain in his residence; and (b) he is surely far more familiar with his vault than anyone in the Probation Office. Nor, in any event, are Probation Officers equipped to serve as firearms custodians anyway.
Finally, and similarly, the Court rejects Wendt's proposal that he be allowed to retain firearms for hunting. Again, the record provides too many reasons to doubt his willingness to abide by any promises he makes. Condition 5(j) is the only way to reasonably assure the safety of the community, subject only to Wendt's ability to possess and use a service weapon if he is reinstated as Police Chief for the City of Adair. III. CONCLUSION
Wendt asserts that he has no "service weapon" because the Adair Police Department is so small that its officers use personal firearms in their official duties. If he is reinstated as Police Chief—an issue on which this Court takes no position, as it is entirely up to the Adair City Council—the Court will entertain motion practice as to the parameters of his possession of a firearm in connection with his performance of official duties.
The Court DENIES Wendt's Emergency Appeal of Pretrial Release Condition as it relates to Condition 5(j). The stay of enforcement of Condition 5(j) is hereby lifted, and it will now be in force as written. By 5:00 p.m. on Friday, January 13, 2023, Wendt must relinquish possession of all firearms and ammunition on his property. By the same deadline, Wendt must inform the Probation Office where the firearms and ammunition have been taken and who has custody of them.
The Court reserves ruling on Wendt's Emergency Appeal of Pretrial Release Conditions as it relates to Condition 5(g) regarding communication with potential witnesses. The Court will address this issue once the Court has the benefit of supplemental submissions from the parties. In the meantime, Condition 5(g) remains in effect except as modified during the hearing on January 10, 2023, to allow Wendt to communicate with employees of BW Outfitters and to allow him to communicate during an official meeting on January 11, 2023, with the City of Adair City Council, City Attorney, and Mayor.
IT IS SO ORDERED.