A magistrate’s decision was entered in the Motion to Suppress Evidence filed on behalf of Deric Lostutter in federal court. And oh what an eye opener that Recommendation was!!! For almost 4 years, Deric Lostutter has been telling anyone who would listen what a bad ass he is and that when a search warrant was executed on his property that the FBI and SWAT came storming in, weapons drawn and ordered him to the ground. As it turns out…Deric wasn’t telling the truth when he told his story about the “raid”. I know…hard to believe, but his testimony and that of his brother were noted to be utterly unbelievable and it was that the cursing, gun wielding, mean old FBI and SWAT agents were a figment of Deric’s overly active imagination.
When the SWAT team pulled in, his shotgun was resting against the wall because he had just gotten back from turkey hunting. A panel truck pulled into his driveway, and when he went out to greet it twelve men in forest camouflage jumped out with assault weapons pointed right at his head, yelling, Get the fuck down!
As he dropped, KYAnonymous pleaded, Don’t shoot my dog. He don’t bite, he just jumps.
The noise woke up a second witness, his brother Chase. A lean twenty-three-year-old who plays in a punk band and works in a tattoo parlor, Chase remembers looking down from an upstairs window and seeing men with machine guns heading for his door. His first instinct was to grab his .45, cocking it on his way down the stairs.
SWAT! voices yelled. POLICE! The door crashed against the wall.
Chase had the presence of mind to throw his gun into the curtains, then instantly he was on his knees with a hard barrel pressed into his skull. The invaders wouldn’t say what they wanted, wouldn’t answer questions, just zip-tied his hands and went upstairs to zip-tie his girlfriend and walked them both outside. She doesn’t even have any shoes, Chase said. He remembers the FBI guy saying, Shut the fuck up.
This is America, buddy, Chase answered. You’re on my property. You shut the fuck up.
As it turns out — none of that is even true. LOL From the Magistrate’s Recommendation:
The Court credits Jackman as a believable, credible witness. The Court cannot say the same for the defense witnesses. Most obviously, the Lostutter brothers told self-contradictory stories concerning the events from the very beginning of the search. Chase Lostutter explained that only he and Goodwin were in the home when law enforcement entered; Defendant, however, averred that not only was he, in fact, in the house, but that he had been back long enough from hunting to take a shower, redress, make breakfast, and begin watching television. Chase Lostutter described the agents securing him and Goodwin first; Defendant, however, swore that he opened the door for the SWAT team and was the first occupant on the ground. Chase Lostutter (who described agents kicking in the front door) explicitly remembered watching agents bring Defendant (who he said was still hunting), already cuffed, up through the backyard; Defendant, however, testified that he had returned from hunting long before law enforcement arrived. The stories do not square.
Chase Lostutter estimated the total law enforcement involvement as lasting 5 hours (9:30 a.m. to 2:30 p.m.); Defendant, however, estimated it lasting 2-2.5 hours, a 100+% (and actually quite stark) difference in the time estimation. The Court would expect a home occupant to remember the duration of a search to a more accurate degree—at least whether it was prolonged well into mid-afternoon (per Chase Lostutter) or was completed by or before noon (per Defendant). These are fundamental, foundational differences contained within the defense’s own side of the story. The Court
could not credit as truthful and accurate the defensive narrative when the defense presented self-contradictory proof on central, formative facts of the search.
Further, the Court finds specific, critical aspects of Defendant’s testimony to be inherently incredible. First, Lostutter testified that law enforcement told him that he would face criminal charges if he told anyone about the search—specifically, “Don’t tell anybody, or you’re going to face more charges.” DE #58, at 114. The Court finds this testimony to be inherently unbelievable. It is not credible that the FBI, in the midst of a very public action (involving the SWAT team, 20 search personnel, multiple vehicles, in broad daylight) would link Lostutter revealing the search event to criminal charges. No evidence of such threats against the other occupants exists. He contended the FBI said he would go to jail and face distinct charges if he told anyone, DE #58, at 129-30, and that
claim is fanciful on this record. Second, Lostutter testified that, incredibly, he did not know, even post-interrogation, what the search concerned or why it was happening;
instead, he testified that he found out, later, only from reviewing the warrant. DE #58, at 115. As above, the Court finds this answer to be utterly unbelievable. As a matter of common sense, the interviewing agents would obviously have questioned (and did question) Lostutter concerning the topic(s) of investigation. If common sense did not suffice, Bixby and Collins’s 302 confirms that they questioned Lostutter concerning hacking activities, his use of @KYANONYMOUS and related Twitter handles, “his involvement in the promotion of Steubenville,” his relation to @JustBatCat, and other investigation-specific details. DE #39-1. The Court discredits and does not believe Lostutter’s sworn testimony to the contrary. Lostutter claimed he was making random guesses regarding the reasons for the search and knew no details until he read the warrant. The 302 shows a detailed discussion of the Steubenville events. This blatantly inaccurate claim empties Lostutter of credibility in terms of the day’s events.
A host of other credibility problems emerged as to the brothers. Chase claimed to be confused and threatened, but he pushed back throughout the day and was no shrinking violet. Further, he claimed to immediately have told police he would be three hours late for work when the search had just begun, an impossibility. DE #58, at 60. Chase suggested police kicked in the front door, while Defendant testified he opened the door to find an agent at the threshold. Compare id. at 54, with id. at 75.
Defendant’s own believability problems were plentiful. A few stuck out: He first claimed to have been uncuffed only to eat. Later, physical pain from the handcuffs became the motivating reason, a basis he took so far as to claim that the handcuffs scarred him for several days and “broke the skin” despite his unusually durable integument. Id. at 125. This conflicts with the 302 but also shows the evolving (and intensifying) nature of Lostutter’s narrative as it went on. Additionally, Defendant’s description of both the duration of the handcuffs and the intersection of the cuffs and
questioning was not consistent over his testimony. Finally, he claimed to have concocted his own hypothetical to explain to his girlfriend the reason for the search (a marijuana grow operation), and that the FBI congratulated him on the idea. Id. at 101, 115. Again, the search activity was public and the agents knew the warrant would reveal the fact of search and investigative foci; further, the warrant would be a public document. There simply is no truth, in the Court’s view, in the ruse story or the alleged coercion regarding search secrecy.
Additionally, unlike Jackman, Lostutter often appeared nervous on the stand, referencing his own anxiety and repeatedly going off on unconnected and inconsequential tangents in his answers. Many of Lostutter’s answers and the manner of delivery (an element likely not captured in any transcript) had a rehearsed or canned quality about them, leading the Court to discount their likely veracity. [The Court also notes, as relevant here, Defendant’s obvious motive, as the prosecution target, in telling the narrative he did. Also, he does stand indicted for lying on the very day at issue. DE #1,
On the manner of questioning, much of the Court’s discussion on prong one addresses this consideration. In sum, the Court finds that the interview, overall, was non-threatening and non-coercive. Officers did not threaten or intimidate Lostutter. The manner of questioning here supports a non-custodial finding.