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Report and Recommendation — United States v. Kaeding (Dkt. 171, D. Minn.)

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A report and recommendation by a United States Magistrate Judge in United States v. Harold Bennie Kaeding, Case No. 21-CR-169 (ECT/JFD), in the U.S. District Court for the District of Minnesota, filed December 11, 2023 as Doc. 171. It addresses Kaeding's motions to suppress statements made during an FBI search of his home and evidence obtained by search and by grand jury subpoena, briefed pro se after he chose to represent himself. It recites the superseding indictment's allegation that he applied for just over $2.18 million in loans and obtained $658,490, with $984,100 recalled and $378,255 never disbursed. The magistrate judge recommends that the motions be denied in all respects and sets the 14-day period for objections. It runs 22 pages.

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Filed December 11, 2023 in Harold Bennie Kaeding; one of 11 filings from this case.

Record facts

Court	U.S. District Court for the District of Minnesota
Filed	2023-12-11

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“Report and Recommendation — United States v. Kaeding (Dkt. 171, D. Minn.).” U.S. District Court for the District of Minnesota, No. 0:21-cr-00169, Doc. 171, filed 2023-12-11. Archived at Pandemic Darlings, https://pandemicdarlings.com/court-filings/us-v-harold-bennie-kaeding/2023-12-11-report-and-recommendation-dkt-171/, SHA-256 9eb6b10840d89f058eea22950c95cb5972ef34e222849abe33f9958476e1d060.

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CASE 0:21-cr-00169-ECT-JFD Doc. 171 Filed 12/11/23 Page 1 of 22

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

UNITED STATES OF AMERICA, Case No. 21-CR-169 (ECT/JFD)

Plaintiff,
REPORT AND
v. RECOMMENDATION

HAROLD BENNIE KAEDING,

Defendant.

Under the authority of a search warrant issued by this Court, FBI Agents searched

the home of Harold Bennie Kaeding, the Defendant. The search was part of a law

enforcement investigation into allegations that Mr. Kaeding defrauded federal relief

programs meant to ameliorate the economic harm caused by the COVID-19 pandemic.

While the search was underway, an FBI Agent and an FBI forensic accountant interviewed

Mr. Kaeding for about an hour and five minutes 1 without first giving him a Miranda

1
In a pro se memorandum in support of his motions to suppress, Mr. Kaeding asserts that
for half an hour before the FBI Agent turned on a recorder, he was subjected to
“accusations,” “interrogation,” and “threats” by that agent. (Pro Se Mem. Supp. 4, Dkt. No.
161.) (“Mr. Burnham[‘s] accusations and interrogation continued for about 30 minutes
before he started recording in the dining room at about 6:37 in the morning.”) No evidence
of the recorder being turned on late was introduced at the motions hearing in this case.
Also, Mr. Kaeding’s pro se statement contradicts the Motion to Suppress Statements filed
by Mr. Kaeding’s former counsel, which states that “[a]t 6:37 a.m., just moments after he
put in his hearing aids, two of the agents introduced themselves to Mr. Kaeding and began
interrogating him. . . .” (Am. Mot. Suppress Statements 2, Dkt. No. 77.) (emphasis added)
The Court notes generally that Mr. Kaeding alleges numerous facts in his pro se
memorandum that were never put into the record of this case. These events were not
described by a witness testifying under oath, whose testimony was then tested by cross
examination. Therefore, none of these unsworn facts have influenced the Court’s decision
on these three suppression motions.
1

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warning. Although Mr. Kaeding was not arrested on the day of the search, he was arrested

later. After Mr. Kaeding was arrested, his adult daughter came into possession of some of

his documents and electronic devices. The prosecution obtained those documents and

devices by serving Mr. Kaeding’s daughter with a grand jury subpoena duces tecum, with

which she complied. The parties disagree about how Mr. Kaeding’s daughter got these

items. (Tr. of Mot. Hr’g (“Tr.”) 35:5–37:2, Dkt. No. 123.)

Mr. Kaeding now asks this Court to suppress the statements he gave while the search

warrant was being carried out, noting the absence of a Miranda warning and also asserting

that the statement was generally involuntary. Mr. Kaeding also asks the Court to suppress

the evidence obtained through the warranted search of his home, saying that the

information presented to the issuing magistrate judge was stale, that is, so much time

elapsed between the events described in the affidavit supporting the search warrant

application and the presentation of that application to a magistrate judge that it was not

reasonable to conclude that the things the FBI was looking for would still be at Mr.

Kaeding’s house. Finally, Mr. Kaeding asks for suppression of the documents and devices

that were subpoenaed from his daughter.

The United States responds that, as to Mr. Kaeding’s statements, no Miranda

warning was required because Mr. Kaeding, who was questioned in his own home, was not

in custody, and the Supreme Court has held that a Miranda warning only needs to precede

custodial questioning. The United States also argues that Mr. Kaeding’s statement was

voluntary. As to the search warrant, the United States asserts that the nature of the

information being sought by the search warrant—financial documents and computers—

CASE 0:21-cr-00169-ECT-JFD Doc. 171 Filed 12/11/23 Page 3 of 22

was a type of evidence that courts have recognized goes stale slowly. When it comes to the

grand jury subpoena to Mr. Kaeding’s daughter, the United States claims that Mr. Kaeding

voluntarily conveyed the documents and devices to his daughter and that when he did so

he assumed the risk that she would disclose that evidence to the authorities. As of the

motions hearing, the United States had not examined the electronic devices obtained by

grand jury subpoena and had undertaken not to do so without a search warrant, although it

had read the documents. (Tr. 36:6–10; 39:9–39:16.) The case has been referred to the

undersigned United States Magistrate Judge for a Report and Recommendation pursuant

to 28 U.S.C. § 636 and District of Minnesota Local Rule 72.1. The Court held a hearing on

the motions on April 28, 2023. (Hr’g Mins., Dkt .No. 117.) Assistant United States

Attorneys Jordan Sing and Robert Lewis represented the United States and Karen

Mohrlant, Esq. and Lee Johnson, Esq. represented Mr. Kaeding. (Id.) Before post-hearing

briefing was complete, Mr. Kaeding elected to represent himself and submitted his briefing

pro se. (Order 1–2, Dkt. No. 147.) The undersigned recommends that the motions be denied

in all respects.

I. PROCEDURAL BACKGROUND AND FACTS 2

Mr. Kaeding is accused in a superseding indictment (Dkt. No. 105) of three counts

of wire fraud, three counts of aggravated identity theft, and one count of money laundering.

2
About two months ago this Court wrote a fairly long, detailed description of the history of
this case, see Order Denying Motion for Reconsideration of Detention (Dkt. No. 154). Only
those additional facts and procedural events necessary to understanding these three
suppression motions are set out here. This Report and Recommendation contains
everything needed to understand the rulings on Mr. Kaeding’s three suppression motions,
3

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Mr. Kaeding is alleged to have submitted false applications for loans guaranteed by the

Small Business Administration that were meant to provide relief to businesses that suffered

economic harm because of the COVID-19 pandemic. (Superseding Indictment ⁋⁋ 1, 8.)

The total amount of the loans for which Mr. Kaeding applied was just over $2.18 million,

and the grand jury alleged he actually obtained $658,490. (Id. ⁋⁋ 18–23.) Another $984,100

was disbursed but recalled before it reached Mr. Kaeding, and $378,255, although applied

for, was never disbursed at all. (Id.)

Shortly after six o’clock on the morning of January 13, 2021, seventeen law

enforcement personnel went to Mr. Kaeding’s Eden Prairie home with a search warrant

issued by a magistrate judge of this Court. (Tr. 50:6–12.) Both the United States and Mr.

Kaeding agree that law enforcement made a forcible entry into the home. Mr. Kaeding’s

former counsel claims that “17 law enforcement officers broke down the door of Mr.

Kaeding’s home and stormed into his residence.” (Am. Mot. to Suppress Statements 1.)

The lead FBI Agent on the case, Special Agent Burnham, testified at the motions hearing

that the door was forced open, but not by all 17 agents, and was done only after Mr.

Kaeding’s spouse refused to open the door for them, and ran from the front door further

into the house, causing apprehension that she might be going to destroy evidence or retrieve

a weapon. (Tr. 43:12–45:7; 51:16–52:21.) Law enforcement broke down the door with a

ram and an undetermined number of law enforcement officers entered the home with their

guns drawn. Once the home was secured and all persons were accounted for, the law

but if further context is desired, the reader is respectfully directed to the Order Denying
Motion for Reconsideration. (Dkt. No. 154.).
4

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enforcement officers holstered their weapons. (Tr. 52:25–53:16.) They did not draw their

weapons again during the search. (Id.)

Mr. Kaeding asserts that he did not have his hearing aids in when he went to see

what was going on and so he could not understand what the agents were saying. (Pro Se

Mem. in Supp. of Mots. 1.) 3 However, he adds that he understood (apparently after

inserting the hearing aids) that the lead FBI agent was offering to leave his wife and son

alone if Mr. Kaeding would take responsibility for the alleged fraud. (Pro Se Mem. Supp.

4.) The lead FBI Agent was not questioned about this accusation at the motions hearing.

The prosecution states that Mr. Kaeding was told he was not under arrest, that he was in

fact free to leave and that he was not going to be arrested unless evidence of an additional

crime was turned up during the search. (Tr. 59:1–60:12.) It is undisputed that Mr. Kaeding

was not advised of his rights under Miranda v. Arizona. (Tr. 73:21–22.) Mr. Kaeding spoke

to the lead FBI Agent and a forensic accountant in a room of his home for about one hour

3
In his Pro Se Memorandum, Mr. Kaeding makes extensive, detailed factual claims for
which there is no support in the record. For example, he says two agents came through the
back door, that he was handcuffed, marched through the house at gunpoint, and “forced”
into a recliner. (Pro Se Mem. Supp. 4.) At the motions hearing, there was testimony only
about the front door and none about the back door. (Tr. 51:21–52:21; 68:23–70:9.)
Although the lead agent testified that he did not recall one way or the other whether Mr.
Kaeding was handcuffed (Id. at 73:19–20), he unequivocally testified that during the
interview, Mr. Kaeding was not in handcuffs (Id. at 63:3–13.) There is no mention
anywhere in the record of Mr. Kaeding being marched anywhere (much less at gunpoint),
and the hearing testimony was that once the questioning of Mr. Kaeding concluded, he got
into a recliner and, after being given a pillow and a blanket, fell asleep. (Id. at 64:1–20.)
If there were facts Mr. Kaeding wished to make use of, it was his responsibility to
put those facts into the record, either by eliciting them from cross-examination of the
prosecution’s witnesses, or by calling a witness of his own. The Court will not consider
unsupported factual allegations in Mr. Kaeding’s post-hearing briefing.
5

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and five minutes. (Pl.’s Ex. 1, described in Exhibit List, Dkt. No. 119.). Mr. Kaeding chose

to answer some questions and declined to answer others. (Tr. 60:18–61:22.) The FBI did

not pressure Mr. Kaeding to answer any questions to which he chose not to respond. Id.

About fourteen months later, in March of 2022, after Mr. Kaeding was in custody,

the grand jury issued a subpoena duces tecum to Mr. Kaeding’s adult daughter for

documents and tangible things that she was holding for safekeeping after his arrest. (Mot.

to Suppress Evid. Obtained by Grand Jury Subpoena Duces Tecum 1, Dkt. No. 74.) Mr.

Kaeding describes the subpoenaed items as “a ‘box of documents,’ computers, cell phones,

and other items.” (Id. at 2.) The United States avers that it has not examined any of the

electronic devices turned over pursuant to the grand jury’s subpoena and will not do so

unless it first obtains a search warrant. (Resp. of the U.S. to Def.’s Pretrial Mots. 9–10; Tr.

36:6–10.)

II. ANALYSIS

Mr. Kaeding seeks suppression of evidence on three grounds. First, he challenges

the use of his statements against him because he did not receive a Miranda warning before

talking to law enforcement and because his statement was not voluntary. Second, he argues

that the warrant to search his home was invalid because it relied on stale information. Third,

he asks that the documents provided by his daughter be supressed because law enforcement

never received a warrant to seize the property. The Court will address each argument in

turn.

CASE 0:21-cr-00169-ECT-JFD Doc. 171 Filed 12/11/23 Page 7 of 22

A. No Miranda Warning Was Necessary and Mr. Kaeding’s
Statements Were Voluntary.
i. Because Mr. Kaeding Was Not in Custody When Law
Enforcement Questioned Him, No Miranda Warning
Was Needed.
Recognizing the potential that “the interplay of interrogation and custody would

‘subjugate the individual to the will of his examiner’ and thereby undermine the privilege

against compulsory self-incrimination,” Rhode Island v. Innis, 446 U.S. 291, 299 (1980),

the Supreme Court held in Miranda v. Arizona, 384 U.S. 436, 444 (1966), that “the

prosecution may not use statements, whether exculpatory or inculpatory, stemming from

custodial interrogation of the defendant unless it demonstrates the use of procedural

safeguards effective to secure the privilege against self-incrimination.” (Emphasis added)

As these two quotes explain, the requirement to administer the well-known Miranda

warning arises only when a suspect is questioned while in custody. Mr. Kaeding was

certainly questioned, but whether he was in custody when speaking to law enforcement in

his own home requires further analysis. A suspect is “in custody” and a Miranda warning

is required before questioning if the suspect has been formally arrested or “under any other

circumstances where the suspect is deprived of his freedom of action in any significant

way.” United States v. Griffin, 922 F.2d 1343, 1347 (8th Cir. 1990). If a reasonable person

in the suspect’s position would believe his freedom of action had been curtailed to a

“degree associated with a formal arrest,” and that belief, analyzed under the totality of the

circumstances, is reasonable from an objective viewpoint, then the suspect is in custody,

no matter where he or she is. Id. at 1347. The defendant in Griffin, like Mr. Kaeding, was

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questioned by two agents in his own home. Id. at 1346 (citing Berkemer v. McCarty, 468

U.S. 420, 429 (1984)). In Griffin, the Eighth Circuit found the following factors useful in

deciding whether a suspect is in custody when being questioned:

Freedom of Action. Was the suspect free to leave? The Griffin court reiterated

that the suspect’s freedom of movement and action continued to be a “critical

factor” in the custody analysis, while the remaining factors had “inconclusive,

independent relevance” in the inquiry. Id. at 1348.

The Purpose of the Interrogation. What was law enforcement’s purpose for

the questioning? Was it to obtain incriminating information from the target of

their investigation? The Griffin court found this relevant only in the sense that it

“contributes to the suspect’s sense of custody,” and noted that the factor did not

“weigh heavily” in the analysis. Id.

The Location of the Interrogation. Was the suspect questioned at a police

station or at a place of employment, a public place, or the suspect’s own home?

Id.

The Length of the Interrogation. While the Griffin court labeled this factor

“length,” its discussion of this factor shows it actually was concerned not with

the length of the interrogation alone but with whether law enforcement gave the

detainee the message “that questioning will continue until he provides his

interrogators the answers they seek.” Id. at 1348 (quoting Berkemer, 468 U.S. at

439).

CASE 0:21-cr-00169-ECT-JFD Doc. 171 Filed 12/11/23 Page 9 of 22

Indicia of Custody. This factor breaks down into the non-exhaustive sub-factors

of (1) whether the suspect was told that the questioning was voluntary, that they

were free to leave or request that the officers leave, or that they were not under

arrest; (2) whether the suspect’s freedom of motion was unrestrained during the

questioning; (3) whether the suspect contacted law enforcement or voluntarily

agreed to their request for information; (4) whether officers used “strong arm

tactics or deceptive stratagems” during the questioning; (5) whether the

atmosphere of the questioning was “police-dominated”; and (6) whether the

suspect was arrested after questioning. Id. at 1349.

Application of the Griffin factors to Mr. Kaeding’s situation on the morning of

January 13, 2021 shows that Mr. Kaeding was not in custody and that a Miranda warning

was therefore not required. While the purpose factor weighs very slightly in favor of a

finding of custody, freedom of movement, location, length, and indicia of custody factors

all suggest that Mr. Kaeding was not in custody. Law enforcement was therefore not

required to read Mr. Kaeding a Miranda warning before questioning him. To start, Mr.

Kaeding was the subject of an ongoing investigation, but one without a clear target because

the FBI was investigating potentially fraudulent loans in the name of Mr. Kaeding, his

wife, and his son. (Tr. 47:10–48:23.) All the loans traced back to the same address. (Id. at

47:14–23.) Officers were seeking information from Mr. Kaeding, who was one of multiple

suspects in the case. (Tr. 73:4–7.) However, officers did not restrict his freedom of

CASE 0:21-cr-00169-ECT-JFD Doc. 171 Filed 12/11/23 Page 10 of 22

movement during questioning. 4 He was not handcuffed, no weapons were brandished, and

after the interview Mr. Kaeding was helped to a recliner, where he fell asleep after being

given a blanket and pillow. (Tr. 59:21; 63:6–7.) Mr. Kaeding was questioned in his own

home, and there is no evidence law enforcement tried to intimidate him by stating that he

would be questioned until he said the things law enforcement wanted to hear.

Turning to the indicia of custody, Mr. Kaeding was told he did not have to answer

questions, but with the warning that if he chose to answer questions, his answers had to be

truthful: “S.A. Burnham: It’s a crime if you decided that you didn’t want to tell me the

truth. Mr. Kaeding: No, but if I don’t talk to you? S.A. Burnham: No, there’s no problem

with that at all. It’s totally up to you. Mr. Kaeding: Okay.” (Pro Se Mem. Supp. at 5

(quoting transcript of recorded statement)).In his pro se memorandum, Mr. Kaeding

complains that this information was conveyed to him in the form of five questions to which

he was not given a chance to respond, relying on the following passage from the interview

transcript to support his claim:

So like I said, you’re not under arrest, you’re free to take off and leave the
house until we’re done with the search warrant if you wanted to, okay? And
you’re not going to be arrested today, okay? Unless we discover some other
crime that’s already occurred. So we have to say that is a crime, like
something would necessitate being a crime, right? Okay? So in essence, this
is our 1001 statement. So if you could just sign that for me. All that says is
that I told you you can’t make false statements to me. Fair enough?

4
On cross-examination, the lead investigator did note that if Mr. Kaeding went to the
bathroom during the questioning, he would have needed to have been accompanied by law
enforcement, for officer safety. (Tr. 78:12–20.)
10

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(Tr. 77:5–11 (quoting transcript).) Mr. Kaeding responded “Gotcha.” (Id.) Mr. Kaeding’s

criticism of the form in which this information was conveyed to him—a series of rhetorical

questions—does not undercut the Court’s conclusion that Mr. Kaeding was advised that he

was free not to talk to law enforcement. If one removes the words “okay,” “right,” and “fair

enough” these questions become statements, to which no response is required. Mr. Kaeding

was told he was not under arrest, that he was free to leave, that it was fine if he chose not

to speak to agents, but if he did decide to speak with agents, he could not lie. Mr. Kaeding

does not claim he did not understand what he was being told. 5

Mr. Kaeding’s former counsel argues that the FBI Agent undercut these assurances

by telling Mr. Kaeding he would not be arrested that day “unless we discover some other

crime that’s already occurred” and that the assurances were further undercut when the agent

asked Mr. Kaeding to sign a written advisory about the consequences, under 18 U.S.C.

§ 1001, of lying to a federal agent about a material fact. Neither former counsel nor Mr.

Kaeding argue that either the FBI Agent’s remark about the possibility of arrest if a crime

other than the one under investigation was discovered, or the text of the advisory that Mr.

5
Mr. Kaeding does claim that embedded within the literal words spoken by Special Agent
Burnham was an offer from Special Agent Burnham to Mr. Kaeding that if Mr. Kaeding
would take responsibility for the crimes under investigation, Mr. Kaeding’s wife and son
would not be further investigated. This claim is analyzed fully in the section of this Report
& Recommendation devoted to Mr. Kaeding’s claim that his statement was involuntary,
but suffice it to say at this juncture that this claim is not supported by any evidence in the
hearing record. At this point, the Court limits itself to finding that no such offer can be
found in the words spoken by Special Agent Burnham, but later, the Court will find that
no such offer can be inferred from the context within which those words were spoken.
11

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Kaeding signed, was legally incorrect. The Court finds that neither the agent’s oral

statements, nor the written advisory, contained any misstatements of law.

Nor has this Court’s review of the record revealed any evidence that the agent’s

statements or the written advisory had any effect on Mr. Kaeding’s decision to speak with

law enforcement. To the contrary, by the time the agent made these statements and Mr.

Kaeding signed the advisory, his hearing aids were in place, his response to the agent was

“gotcha,” and he neither asked questions nor expressed apprehensions about anything he

had heard or read.

While Mr. Kaeding did not initiate contact with law enforcement, he did respond to

law enforcement’s questions after being told, as quoted above, that speaking to law

enforcement was voluntary. Mr. Kaeding’s contrary claim, that his decision to speak with

law enforcement was not voluntary, is unpersuasive. This claim of Mr. Kaeding’s goes

both to the Griffin factor and to the general voluntariness of his statement and it has two

components. The first is a claim that law enforcement used inappropriately heightened

levels of force in executing a white-collar search warrant for documents; seventeen agents

and officers participated in the search, they gained entry to the house with a battering ram,

and at least during the initial entry into the home they carried their firearms in their hands.

The second component, advanced only by Mr. Kaeding in his pro se memorandum and

going only to general voluntariness and not to the Griffin factor, is a claim that he spoke to

law enforcement because they promised him that if he did so, law enforcement would

concentrate their investigation on Mr. Kaeding and leave his wife and son alone. This

second component of Mr. Kaeding’s involuntariness argument is analyzed further below.

CASE 0:21-cr-00169-ECT-JFD Doc. 171 Filed 12/11/23 Page 13 of 22

Mr. Kaeding’s claim that his decision to speak to law enforcement was involuntary

because of the manner of law enforcement’s entry fails. Special Agent Burnham testified

at the motions hearing that each of the measures taken at the beginning of the search was

justified by the situation confronting law enforcement when they arrived at Mr. Kaeding’s

house, and the agent disavowed using any of these measures in the hope of frightening Mr.

Kaeding. Seventeen people were needed to search “a very large house” for the records of

“multiple businesses,” especially when there were multiple people living in the house, all

of whom needed to be interviewed and at least one of whom apparently could not

communicate except with the assistance of an interpreter. (Tr. 51:1–15.) Forcible entry was

necessary because when Special Agent Burnham showed his credentials through the glass

of the front door to Mr. Kaeding’s wife, instead of opening the door, she turned and ran,

raising concerns that she might be fetching a weapon or attempting to destroy evidence.

(Id. at 52:14–15.) This is also the reason the agents first entered the home with their

firearms drawn, although those were put back in their holsters once the agents knew the

house was secure. (Id. at 53:13–16.) While these events were no doubt stressful and

upsetting, by the time the interview of Mr. Kaeding began, the house had been secured for

approximately five minutes, law enforcement had put away their guns, everyone in the

house had been gathered in the living room where they received an explanation of why law

enforcement was in the house, and Special Agent Burnham had explained to Mr. Kaeding

CASE 0:21-cr-00169-ECT-JFD Doc. 171 Filed 12/11/23 Page 14 of 22

that he was free to decline to answer questions. Any stress caused by the manner of law

enforcement’s entry had been dissipated by these measures. 6

While the Eighth Circuit has not considered the question of whether a forced entry

by armed police officers renders a subsequent statement involuntary, the Ninth Circuit has,

and this Court finds its reasoning persuasive. In United States v. Banks, 282 F.3d 699, 706

(9th Cir. 2002) the defendant, Mr. Banks, was in the shower and so did not hear officers at

his front door, with a search warrant, knocking and announcing their purpose. Moments

later, Mr. Banks, “naked, wet, and soapy,” was confronted by armed SWAT team officers

who had just forced their way into his apartment. Mr. Banks, who also claimed to have

been under the influence of drugs and alcohol, moved to suppress the statements he made

to law enforcement, saying “he was terrorized by the entry of the police into his home,

intimidated by officers employing the ‘good-cop versus bad-cop’ routine, and in fear of

being paraded naked around the neighborhood.” 282 F.3d at 705–06. The Ninth Circuit,

although it reversed Mr. Banks’ conviction because it held that the police had not waited

6
It may be objected that the subjective intentions of law enforcement are irrelevant to
deciding whether a statement was voluntary and that therefore the fact that law enforcement
forcibly entered the house because of concern about weapons or destruction of evidence is
of no importance. While it is true that the objective conditions under which an interrogation
is conducted control a voluntariness inquiry, and not the subjective perceptions of either
law enforcement or the person being questioned, law enforcement’s subjective intentions
and perceptions can be relevant to an analysis of voluntariness if they are conveyed to the
subject. Stansbury v. California, 511 U.S. 318, 325 (1994). Here, not only did the objective
circumstances of the interview vitiate any lingering stress from the forced entry, but if Mr.
Kaeding did perceive anything about law enforcement’s reasons for forced entry, he would
have perceived that the forced entry was made for reasons other than attempting to
intimidate him.
14

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long enough to force entry, 7 gave short shrift to Mr. Banks’ claims that his statements were

involuntary. The court noted that Mr. Banks was calm and able to reason, that he (like Mr.

Kaeding) answered some questions but would not answer others and understood his

circumstances.

Mr. Kaeding, like Mr. Banks, understood his circumstances. Mr. Kaeding has not

come forward with any evidence of raised voices, slaps on the table, threats of violence, or

any other threats or promises (with the exception of the allegation discussed below) that

would have overborne Mr. Kaeding’s free will. Any shock he may have experienced due

to the forced entry appears, on the evidence, to have dissipated.

As to the final two Griffin factors, the atmosphere was not police-dominated.

Although 17 members of law enforcement were in the house, Mr. Kaeding was interviewed

in a room occupied only by him, an agent, and an accountant. (Tr. 58:6–16.) Finally, Mr.

Kaeding was not arrested when the search concluded.

In sum, the Griffin factors tend to show that Mr. Kaeding was not in custody for

Miranda purposes when Special Agent Burnham interviewed him. The Court finds that

Mr. Kaeding was not in custody and that no Miranda warning was required before

questioning.

ii. Mr. Kaeding’s Statement Was Voluntary.
Over and above his Miranda claim, Mr. Kaeding makes a claim that his statement

was generally involuntary. The Court disagrees.

7
The Supreme Court later reversed the Ninth Circuit and held the police had in fact waited
long enough before forcing entry. United States v. Banks, 540 U.S. 31 (2003).
15

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A suspect’s statement to law enforcement is involuntary if it is “extracted by threats,

violence, or express or implied promises sufficient to overbear the defendant’s will and

critically impair his capacity for self-determination.” United States v. LeBrun, 363 F.3d

715, 724 (8th Cir. 2004) (quoting Simmons v. Bowersox, 235 F.3d 1124, 1132 (8th Cir.

2001)). Involuntary statements cannot be introduced into evidence against a criminal

defendant at trial. Vega v. Tekoh, 597 U.S. 134, 141 (2022). A statement cannot be found

involuntary without some coercive police tactics. Colorado v. Connelly, 479 U.S. 157, 167

(1986). Put differently, no matter how fragile a suspect is, due to their mental health,

substance use, lack of sleep, or other characteristics, a statement can never be found

involuntary purely on the basis of the suspect’s attributes; law enforcement’s actions must

always be part of the calculus. (Id. at 164.)

Mr. Kaeding relies upon two alternative aspects of police behavior to support his

assertion that his statement to Special Agent Burnham was involuntary. First, he claims

that law enforcement’s forced entry into his home, the large number of law enforcement

personnel involved in the search, and their drawn firearms were a threat. This claim is in

both the motion filed by Mr. Kaeding’s former counsel and in Mr. Kaeding’s pro se

memorandum, it has been analyzed above in this Report and Recommendation, and it is

not necessary to belabor the point again here.

The second claim, found only in Mr. Kaeding’s pro se memorandum, is premised

upon the existence of a supposed bargain between Mr. Kaeding and Special Agent

Burnham in which Mr. Kaeding would speak to Agent Burnham and in return, the focus of

Agent Burnham’s investigative efforts would move away from Mr. Kaeding’s wife and

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son. If true, such a promise could be the sort of promise that would overbear a suspect’s

will under LeBrun. In support, Mr. Kaeding cites page 65 of the motions hearing transcript

for the statement that “Mr. Burnham said if Mr. Kaeding took responsibility they would

leave his wife and son alone. Mr. Kaeding agreed.” (Pro Se Mem. Supp. 4.) But nowhere

at all in the transcript of the motions hearing is there testimony about such a bargain.

Finally, if the agreement described by Mr. Kaeding really existed, Mr. Kaeding did not

honor it, because throughout the interview Mr. Kaeding, as was his prerogative, declined

to answer some questions and in his responses to those questions he did answer, he denied

responsibility for any financial misconduct related to his applications for COVID-19 relief.

In sum, this claim of Mr. Kaeding’s has no evidentiary support and because of that the

Court specifically finds there was no promise that if Mr. Kaeding talked to law

enforcement, law enforcement would leave Mr. Kaeding’s family alone.

B. The Warrant to Search Mr. Kaeding’s Home Did Not Rely on
Stale Information.
Mr. Kaeding moves to suppress the evidence recovered from his home on the

grounds that the search warrant was stale, that is, that the search warrant was executed too

long after the events described in the affidavit for it to be concluded that the items to be

searched for would still be in Mr. Kaeding’s house. As the United States correctly points

out in its memorandum in opposition to this motion, numerous courts have held that

persons involved in fraud hang on to documentary and electronic evidence of that fraud for

multiple reasons, including the ongoing usefulness of the documents.

CASE 0:21-cr-00169-ECT-JFD Doc. 171 Filed 12/11/23 Page 18 of 22

When Mr. Kaeding’s residence was searched in January of 2021, law enforcement

was looking for information pertaining to a fraud scheme that may have had at its center

fraudulent loan applications made in April and May of 2020 (eight or nine months before

the residence was searched), but which also included the alleged payment of fraud proceeds

to prevent a home foreclosure only three months before the search warrant was sought. The

type of crime under investigation is important in a staleness analysis. United States v. Horn,

187 F.3d 781, 786 (8th Cir. 1999) (citing United States v. Koelling, 992 F.2d 817, 822 (8th

Cir. 1993)) (“The timeliness of the information supplied in an affidavit depends on . . . the

nature of the crime under investigation; the lapse of time is least important when the

suspected criminal activity is continuing in nature and when the property is not likely to be

destroyed or dissipated.”). Because the crime being investigated here was fraud, this

warrant was not stale. See United States v. Miller, No. 20-CR-232 (JRT/BRT), 2022 WL

4127546 (D. Minn. May 31, 2022) (upholding search warrant in fraud case supported by

four to six-month old information); United States v. Jokhoo, No. 12-CR-309 (DSD/JJK),

2013 WL 3479416 (D. Minn. July 11, 2013) (upholding search warrant issued in fraud case

notwithstanding staleness argument, but noting that older information had been refreshed);

United States v. Perry, No. 4:11-CR-106 (AGF/FRB), 2011 WL 7277563 *10 (E.D. Mo.

Oct. 26, 2011) (upholding a search warrant in a fraud case against a staleness challenge,

noting that “[t]he evidence here showed that the defendant had participated in an ongoing

scheme to defraud”); United States v. Nealy, No. 4:04-CR-274-02 (JLH), 2009 WL 481735

at *7 (E.D. Ark., Feb. 25, 2009) (“Information pertaining to loans and mortgages generally

is maintained for years, so the fact that the affidavit indicated that it had been some sixteen

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months . . . did not show that the information was too stale to support probable cause.”).The

Court recommends that Mr. Kaeding’s motion to suppress evidence found in a warranted

search be denied.

C. Materials Obtained by Grand Jury Subpoena Should Not Be
Suppressed.
Mr. Kaeding’s final motion seeks suppression of some materials, including

documents and computers, that the United States obtained by grand jury subpoena served

on Mr. Kaeding’s adult daughter. Because Mr. Kaeding has not demonstrated that he had

a reasonable expectation of privacy in these materials, the Court recommends that this

motion be denied.

There is no evidence as to how the documents and computers wound up with Mr.

Kaeding’s daughter. The argument of the United States is that because Mr. Kaeding

voluntarily conveyed the materials to his daughter, Mr. Kaeding assumed the risk that his

daughter would disclose the materials to the authorities. However, the United States makes

this argument without the benefit of evidence showing that Mr. Kaeding in fact gave the

materials to his daughter of his own free will. Mr. Kaeding, though, does no better. He

states that his family members went through his things after he had been arrested and

detained and that they then carried various items off for safekeeping. There is no more

evidence of that than there is of the prosecution’s opposing theory. Given the absence of

facts, the motion must be resolved procedurally—by analyzing which party has the burden

of proof—rather than on the factual merits.

CASE 0:21-cr-00169-ECT-JFD Doc. 171 Filed 12/11/23 Page 20 of 22

At the motions hearing, the question of the burden of proof was raised, though

without labeling it explicitly as such:

[AUSA] Sing: Your Honor, I do remain confused about how we’re
going to brief the subpoena issue if there’s no testimony
unless the defense is not planning on calling anyone for
the factual dispute.
The Court: I think that the defense, who goes first [in briefing],
needs to explain that even in the absence of testimony
this motion should be granted. Is that correct, Mr.
Johnson [defense attorney]?
Mr. Johnson: That’s correct, Your Honor.
AUSA Sing: Thank you, Your Honor.

(Tr. 85:16–85.) Unfortunately, despite stating that he understood he would have to explain

why his suppression motion should be granted “even in the absence of testimony,” when

the defense brief was filed, there was no discussion of how the suppression motion could

be granted in the absence of a factual showing of a constitutional violation.

“As a general rule, the burden of proof is on the defendant who seeks to suppress

evidence, but on the government to justify a warrantless search.” Carter v. United States,

729 F.2d 935, 940 (8th Cir. 1984) (internal citations omitted). The issue thus becomes

whether serving a subpoena on Mr. Kaeding’s daughter was a warrantless search 8—if it

was, the United States has the burden of proof and if it was not, Mr. Kaeding has the burden

of proof. Whichever party has the burden of proof will lose this motion because neither

party put in any evidence on how Mr. Kaeding’s belongings got to his daughter

8
Similarly, a subpoena to appear before a grand jury is not a Fourth Amendment seizure.
United States v. Dionisio, 410 U.S. 1, 10 (1973). When a third party is subpoenaed for
documents in a criminal case, that generally does not trigger Fourth Amendment protection
for the defendant because one does not have a constitutionally protected right to privacy in
what one shares with a third party. United States v. Miller, 425 U.S. 435, 441–43 (1976).
20

CASE 0:21-cr-00169-ECT-JFD Doc. 171 Filed 12/11/23 Page 21 of 22

Obtaining materials by subpoena is not a search, United States v. Gratkowski, 964

F.3d 307, 310–313 (5th Cir. 2020), unless the subpoenaed information provides law

enforcement with “an all-encompassing record of the holder’s whereabouts” and “provides

an intimate window into a person’s life, revealing not only [an individual’s] particular

movements, but through them [their] familial, political, professional, religious, and sexual

associations.” Carpenter v. United States, 138 S. Ct. 2206, 2217 (2018) (internal quotation

marks and citation omitted). A subsequent search of the materials obtained by subpoena is

a search, but the United States avers that it has not searched the things it got from Mr.

Kaeding’s daughter and that it will not do so without a warrant.

The Court cannot conceive how examining a box containing electronics and some

documents of unspecified nature can be as invasive as mining the historical cell-site

location information at issue in Carpenter. It was the defense’s burden (and opportunity)

to explain the analogy, but it declined to do so. In the absence of any explanation, the Court

finds that there was no search of the material, let alone a warrantless search. If no search

occurred, there is nothing for the government to justify and Mr. Kaeding has failed to meet

his burden of proof on his motion to suppress. The Court recommends that the motion to

suppress materials received via subpoena from Mr. Kaeding’s daughter be denied.

III. RECOMMENDATION

Accordingly, based on all the files, records, and proceedings herein, IT IS

HEREBY RECOMMENDED that:

1. Mr. Kaeding’s Amended Motion to Suppress Statements (Dkt. No. 77) be

DENIED;

CASE 0:21-cr-00169-ECT-JFD Doc. 171 Filed 12/11/23 Page 22 of 22

2. Mr. Kaeding’s Motion to Suppress Evidence Obtained as a Result of Search and

Seizure (Dkt. No. 78) be DENIED; and

3. Mr. Kaeding’s Motion to Suppress Evidence Obtained by Grand Jury Subpoena

Duces Tecum (Dkt. No. 74) be DENIED.

Date: December 11, 2023 s/ John F. Docherty
JOHN F. DOCHERTY
United States Magistrate Judge

NOTICE

Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of
Appeals. Under Local Rule 72.2(b)(1), “a party may file and serve specific written
objections to a magistrate judge’s proposed finding and recommendations within 14 days
after being served a copy” of the Report and Recommendation.

A party may respond to those objections within 14 days after being served a copy of the
objections. See Local Rule 72.2(b)(2). All objections and responses must comply with the
word or line limits set forth in Local Rule 72.2(c).

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