Order Denying Motion to Reopen Motion Hearing — No. 0:21-cr-00169 (Dkt. 183, D. Minn.)

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Order Denying Motion to Reopen Motion Hearing, Doc. 183 filed February 6, 2024 in United States v. Harold Bennie Kaeding, Case No. 21-CR-169 (ECT/JFD) in the District of Minnesota. Kaeding, a pro se defendant charged over allegedly fraudulent COVID-19 relief loan applications, moved (Dkt. No. 181) to reopen pretrial motion practice after his objections to the Report and Recommendation on three suppression motions came due January 15, 2024 and the Hon. Eric C. Tostrud refused a second extension. He wanted to suppress evidence he has not yet inspected and to file further motions after reviewing discovery. John F. Docherty, United States Magistrate Judge, finds he points to no new evidence under United States v. Laws, 819 F.3d 388, notes he had counsel when the motions were filed in October 2022, and denies the motion.

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        CASE 0:21-cr-00169-ECT-JFD Doc. 183 Filed 02/06/24 Page 1 of 4




                        UNITED STATES DISTRICT COURT
                           DISTRICT OF MINNESOTA


 United States of America,                            Case. No. 21-CR-169 (ECT/JFD)

                      Plaintiff,
                                                    ORDER DENYING MOTION TO
 v.                                                  REOPEN MOTION HEARING

 Harold Bennie Kaeding,

                      Defendant.


       This case is before the Court on pro se Defendant Harold Bennie Kaeding’s Motion

to Reopen Motion Hearing. (Dkt. No. 181.) The motion is denied.

       Mr. Kaeding is awaiting trial on charges of wire fraud, aggravated identity theft, and

money laundering for allegedly submitting fraudulent applications for COVID-19 relief

loans he was not entitled to receive. (See Superseding Indictment 8–11, Dkt. No. 105.) Mr.

Kaeding filed several pretrial motions in October 2022 (Dkt. Nos. 65–68, 70–74, 77–78),

which the parties argued in August 2023 (Hr’g Mins., Dkt. No. 146). The Court ruled on

all but three motions to suppress evidence. (Dkt. Nos. 74, 77, 78.) Mr. Kaeding sought

multiple extensions of time to object to the undersigned’s Report and Recommendation

(Dkt. No. 171) on the remaining motions. (Mot. for Extension of Time to File Objs. to the

R&R, Dkt. No. 173; Second Mot. for Extension of Time to File Objs. to the R&R, Dkt.

No. 177.) Mr. Kaeding received one extension; his objections were due on January 15,

2024. (Order, Dkt. No. 174.) The district judge in this case, the Hon. Eric C. Tostrud, has

made clear that “materials filed after the entry” of his January 30th Order denying a second


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        CASE 0:21-cr-00169-ECT-JFD Doc. 183 Filed 02/06/24 Page 2 of 4




extension “will not be considered in reviewing the Report and Recommendation.” (Order

3 n.1, Dkt. No. 180.)

       Undeterred, Mr. Kaeding filed an objection to the Report and Recommendation

today. (Dkt. No. 182.) Perhaps realizing that Judge Tostrud would not consider his tardy

objection, Mr. Kaeding also filed a motion to reopen dispositive motion practice. (Mot. to

Reopen Mot. Hr’g, Dkt. No. 181.) He seeks to suppress all the evidence that he has not yet

inspected, potentially provide notice that he will rely on the affirmative defense of public

authority, and make additional motions after reviewing all the discovery, including motions

to suppress on constitutional or privilege grounds. (Id. at 1.) He also seeks leave to file

additional motions that he has developed during his “months of research,” though he “does

not remember what these are but will identify them when he gains access to his computers

and files.” (Id. at 2.) His justification for reopening motions practice is that he has not yet

received the discovery which the undersigned ordered the United States to disclose to him.1

(Id. at 2–3 (citing Sealed Order, Dkt. No. 175, a redacted version of which is docketed at

Dkt. No. 176).)

       “The Court exercises discretion when considering a request to reopen a suppression

hearing.” United States v. Jones, No. 21-CR-187 (ECT/LIB), 2022 WL 4396464, at *2 (D.

Minn. Sept. 23, 2022) (citing United States v. Chavez Loya, 528 F.3d 546, 555 (8th Cir.

2008)). Mr. Kaeding argues that the Eighth Circuit has not decided whether the proponent


1
  The Court presumes that discovery is en route to Mr. Kaeding, per this Court’s prior order.
If that presumption is incorrect, the United States is expected to correct it by providing an
emailed update to the Court immediately, cc’ing Mr. Kaeding’s standby counsel,
explaining where the discovery is and explaining the delayed delivery.
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        CASE 0:21-cr-00169-ECT-JFD Doc. 183 Filed 02/06/24 Page 3 of 4




of reopening a motion hearing must provide justification for failing to present evidence in

the first proceeding, or whether no justification is required so long as the new evidence was

lawfully obtained. United States v. Laws, 819 F.3d 388, 396 (8th Cir. 2016). But neither

test applies here because Mr. Kaeding has pointed to no new evidence that justifies

reopening the proceedings; he simply wishes to make new legal arguments. He wants,

essentially, a do-over.

       Mr. Kaeding filed several motions in October 2022.2 At the time he filed his

motions, Mr. Kaeding was represented by two experienced criminal defense attorneys who

had access to discovery in this case. The Court granted five extensions so that counsel

could consult with Mr. Kaeding about the motions. (Dkt. Nos. 34, 37, 43, 53, 59.) The

undersigned’s Report and Recommendation on those motions is now pending before Judge

Tostrud. The fact that Mr. Kaeding does not presently have access to printed discovery

does not change the fact that he had the opportunity—through counsel—to review evidence

and raise arguments in favor of suppression. If Mr. Kaeding believed that the undersigned’s

Report and Recommendation on his dispositive motions was in error, his remedy was to

file objections by January 15, 2024, not seek a re-do of pretrial motion practice that began

two years ago.




2
 Which, incidentally, is also when any notice of a public authority defense was required.
(Order on Fifth Mot. for Continuance of the Mot. Filing Date & Mot. Hr’g, Dkt. No. 59);
Fed. R. Crim. P. 12.3(a)(1).
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       CASE 0:21-cr-00169-ECT-JFD Doc. 183 Filed 02/06/24 Page 4 of 4




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

HEREBY ORDERED that Mr. Kaeding’s Motion to Reopen Motion Hearing (Dkt. No.

181) is DENIED.


Date: February 6, 2024                      s/ John F. Docherty
                                           JOHN F. DOCHERTY
                                           United States Magistrate Judge




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