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U.S. v. Hart, 2:16-cr-110-FtM-29CM. (2017)

Court: District Court, M.D. Florida Number: infdco20170703633 Visitors: 17
Filed: Jun. 30, 2017
Latest Update: Jun. 30, 2017
Summary: OPINION AND ORDER JOHN E. STEELE , Senior District Judge . On April 27, 2017, United States Magistrate Judge Carol Mirando submitted an Amended Report and Recommendation (Doc. #50) to the Court recommending that Defendant's Motion to Suppress Evidence (Doc. #24) be denied. Defendant's Objections (Doc. #56) were filed on June 2, 2017. The government filed no response, and the time to do so has expired. I. After conducting a careful and complete review of the findings and recommendations,
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OPINION AND ORDER

On April 27, 2017, United States Magistrate Judge Carol Mirando submitted an Amended Report and Recommendation (Doc. #50) to the Court recommending that Defendant's Motion to Suppress Evidence (Doc. #24) be denied. Defendant's Objections (Doc. #56) were filed on June 2, 2017. The government filed no response, and the time to do so has expired.

I.

After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject or modify the magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); United States v. Powell, 628 F.3d 1254, 1256 (11th Cir. 2010). A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). See also United States v. Farias-Gonzalez, 556 F.3d 1181, 1184 n.1 (11th Cir. 2009) (noting that a de novo review does not mean a de novo examination of the witnesses). This requires that the district judge "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir. 1990) (quoting H.R. Rep. No. 94-1609, 94th Cong., 2nd Sess., reprinted in 1976 U.S.C.C.A.N. 6162, 6163). The district judge reviews legal conclusions de novo, even in the absence of an objection. See Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 604 (11th Cir. 1994).

II.

Defendant argues that the magistrate judge made factual errors, legal errors, and misapplied the law to the facts. After reviewing the Report and Recommendation, the transcript of the evidentiary hearing, and the submissions of the parties, the Court overrules the objections of defendant Hart.

Defendant points to portions of five pages of the forty-page Amended Report and Recommendation and asserts the magistrate judge made errors in her factual findings. The Court finds that the record supports the magistrate judge's findings; that none of the disputed findings are material to the resolution of the motion; and that even resolution of the disputed findings in favor of defendant would not change the disposition of the motion to suppress.

Defendant asserts that the magistrate judge erred on page 1 by describing Playpen as "a website dedicated to child pornography" because it was not exclusively dedicated to child pornography. But the magistrate judge did not say Playpen was "exclusively" dedicated to child pornography, and the description as stated by the magistrate judge is fully supported by the evidence.

Defendant asserts that the magistrate judge erred on page 2 by improperly describing what was done in this case. However, the sentence to which the objection is made summarizes not the facts of the case, but what defendant's motion seeks to suppress.

Defendant also asserts that the magistrate judge made two factual errors on page 5. Page 5, however, does not contain the statements defendant alleges, and the facts as stated on that page are supported by the evidence. Similarly, the disputed findings on pages 12 and 25 are supported by the record. All the factual objections are overruled.

The Court also overrules the objection to the legal conclusions of the magistrate judge. The Court fully agrees with the conclusions of law made by the magistrate judge. Accordingly, the Court will adopt the Report and Recommendation and will deny the motion to suppress.

Accordingly, it is now

ORDERED:

1. The Magistrate Judge's Report and Recommendation (Doc. #49) is terminated as moot in light of the amended filing. 2. The Magistrate Judge's Amended Report and Recommendation (Doc. #50) is accepted and adopted, and it is specifically incorporated into this Opinion and Order. 3. Defendant's Motion to Suppress Evidence (Doc. #24) is DENIED.

DONE and ORDERED.

Source:  Leagle

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