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United States v. Lowe

United States District Court, District of Nevada

December 9, 2014

UNITED STATES OF AMERICA, Plaintiff
v.
LANALSIKOV LOWE, Defendant.

ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION [112] AND DENYING NOTICE TO CORRECT THE INDICTMENT [95] AND MOTIONS TO SUPPRESS [101, 102]

JENNIFER A. DORSEY UNITED STATES DISTRICT JUDGE

Defendant Lanalsikov Lowe is charged with possession of cocaine with intent to distribute and two counts of being a felon in possession of a firearm. Doc. 30. He has gone through four attorneys and is currently proceeding pro se, despite being repeatedly advised of the “dangers and disadvantages of self-representation.” Faretta v. California, 422 U.S. 806 (1975). In his capacity as a pro se litigant, Lowe has filed dozens of motions, twelve of which Magistrate Judge Cam Ferenbach addressed in a November 6, 2014, “Order and Report & Recommendation.”[1] Magistrate Judge Ferenbach denied Lowe’s motions to appoint a private investigator (##96, 105), to compel the government to turn over his cell phone (#97), to allow him greater access to the law library (##98, 103), to compel the government to turn over various evidence, information, and discovery (##99, 100), to appoint standby counsel (#104), and Lowe’s request that the court stamp and copy each of his filings (#111); and the Magistrate Judge recommends that I deny Lowe’s request for reconsideration of suppression-motion denials based on alleged outrageous government conduct (#95), and also deny Lowe’s new motions to suppress allegedly undisclosed evidence (##101, 102). Lowe offers a handful of objections[2] without referencing the specific motions or rulings they address; I liberally construe these arguments as objections to the recommendation that I deny Lowe’s request for reconsideration and the denials of his requests for discovery and additional law library time. Having carefully reviewed the record, all briefing, the Magistrate Judge’s R&R, Lowe’s appeal or objections, and having completed a de novo review, I adopt Magistrate Judge Ferenbach’s findings and conclusions, affirm his orders, accept his recommendations, overrule Lowe’s objections, and deny each of Lowe’s twelve motions.

Background

On November 25, 2013, the Las Vegas Metropolitan Police Department responded to a domestic violence call from Lowe’s girlfriend.[3] When Metro arrived, the girlfriend consented to a search of her apartment, where Lowe had been staying for about a month since being released from prison.[4] The fruits of that search led to Lowe’s indictment for possession of narcotics with intent to distribute and two counts of being a felon in possession of a firearm.

Lowe has since cycled through four court-appointed attorneys, invoked his right to self-representation, [5] and filed dozens of motions. Judge Ferenbach’s November 6th R&R resolves twelve of those motions. Lowe objects that Judge Ferenbach is standing by “allowing the government to commit outrageous government misconduct by committing perjury, lying under oath, falsifying consent forms, refusing to turn over complete discovery, manufacturing a case and vindictive prosecution.”[6] He accuses Judge Ferenbach of conspiring with the government and denying his “constitutional right to have all” his “discovery because he did not tend to show that the government possesses that requested discovery.”[7] And he asks this court to order “the government to turn over full discovery and the defendant the right to look over their notes, law books, and law library time.”[8] I address each of these objections below.

Discussion

1. Law Library Access

The only ruling that Lowe specifically identifies in his objection is Judge Ferenbach’s denial of Lowe’s requests for additional access to the law library while he is being held in the pretrial detention facility. Lowe is correct that the Sixth Amendment requires that a pro se defendant who is incarcerated be given reasonable access to “law books, witnesses, or other tools to prepare a defense.”[9] But the right of access “is not unlimited” and must be “balanced against the legitimate security needs or resource constraints of the prison.”[10] The key is that a defendant being given a chance to have “his voice heard.”[11]

Lowe has been given that chance, as amply demonstrated by his prolific pro se motion practice. He argues that he should be given more time in the law library because “other defendants with lawyers have been granted this access and cannot even file motions.”[12] But there is no evidence that Lowe himself has been prevented from filing motions as a result of his current allotment of library time. As Judge Ferenbach observed when denying Lowe’s motion for additional library access, “the motions [Lowe] has filed to date are frivolous and vexatious.”[13] This observation is well supported by the record, which is rife with examples of duplicative, reiterated requests for items and relief many times denied. Accordingly, I overrule Lowe’s objection and affirm Judge Ferenbach’s denial of Lowe’s requests for additional library access and resources.

2. Other Objections

Lowe’s remaining objections are less specifically targeted. For example, he does not object to Judge Ferenbach’s denial of his requests for a private investigator[14] or standby counsel.[15] Nor does he object to Judge Ferenbach’s recommendations that I deny his motions to suppress.[16]Instead, he more generally claims that the government has “manufacture[d] a case”[17] and that Judge Ferenbach is in on the conspiracy.[18] In liberally construing Lowe’s pro se objections, I divide them into their two basic themes: outrageous government conduct and the desire for additional discovery materials from the government.

a. Outrageous government conduct

The first category under which Lowe’s objections can be grouped is his allegation that the government has committed outrageous conduct that requires the dismissal of his indictment. These arguments were raised in Lowe’s “Notice to Correct the Indictment, ” which is the first motion Judge Ferenbach reviewed.[19] In that motion, Lowe argued that the court should reconsider its prior rulings on Lowe’s motions to suppress and accuses the U.S. Attorneys of prosecuting him as part of a lifelong, personal vendetta.[20]

Lowe resuscitates this argument in his objection and adds Judge Ferenbach to the list of outrageous actors, accusing the Magistrate Judge of having “stood by allowing the government to commit outrageous government misconduct by committing perjury, lying under oath, falsifying consent forms, refusing to turn over complete discovery, manufacturing a case and vindictive prosecution.”[21] He further alleges that “not only have government attorney Philip Smith and Lisa Giroux prejudice (sic) the case, but this case was done out of pure vindictive ...


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