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U.S. v. HENRY, 1:10-cr-521-2-TCB. (2013)

Court: District Court, N.D. Georgia Number: infdco20130529d09 Visitors: 13
Filed: May 24, 2013
Latest Update: May 24, 2013
Summary: ORDER TIMOTHY C. BATTEN, Sr., District Judge. This matter is before the Court on Magistrate Judge Baverman's Report & Recommendation ("R&R") [734], recommending that the Court deny Defendant Otis Henry's motion to suppress evidence obtained by wiretap and electronic surveillance [601]. Henry filed objections to the R&R. A district judge has a duty to conduct a "careful and complete" review of a magistrate judge's R&R. Williams v. Wainwright, 681 F.2d 732 , 732 (11th Cir. 1982) (quoting N
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ORDER

TIMOTHY C. BATTEN, Sr., District Judge.

This matter is before the Court on Magistrate Judge Baverman's Report & Recommendation ("R&R") [734], recommending that the Court deny Defendant Otis Henry's motion to suppress evidence obtained by wiretap and electronic surveillance [601]. Henry filed objections to the R&R.

A district judge has a duty to conduct a "careful and complete" review of a magistrate judge's R&R. Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir. 1982)).1 This review may take different forms, however, depending on whether there are objections to the R&R. The district judge must "make a de novo determination of those portions of the [R&R] to which objection is made." 28 U.S.C. § 636(b)(1)(C). In contrast, those portions of the R&R to which no objection is made need only be reviewed for clear error. Macort v. Prem, Inc., 208 F. App'x 781, 784 (11th Cir. 2006).2

"Parties filing objections must specifically identify those findings objected to. Frivolous, conclusive or general objections need not be considered by the district court." Nettles, 677 F.2d at 410 n.8. "This rule facilitates the opportunity for district judges to spend more time on matters actually contested and produces a result compatible with the purposes of the Magistrates Act." Id. at 410.

The district judge also has discretion to decline to consider arguments that were not raised before the magistrate judge. Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009). Indeed, a contrary rule "would effectively nullify the magistrate judge's consideration of the matter and would not help to relieve the workload of the district court." Id. (quoting United States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000)).

After conducting a complete and careful review of the R&R, the district judge may accept, reject or modify the magistrate judge's findings and recommendations. 28 U.S.C. § 636(b)(1)(C); Williams, 681 F.2d at 732. The district judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1)(C).

The Court has conducted a careful, de novo review of the R&R and Henry's objections thereto. Having done so, the Court finds that Judge Baverman's legal conclusions were correct and that Henry's objections have no merit. Specifically, as set forth in the R&R, the Court finds that Henry has failed to establish standing to challenge the sealing of the interception tapes or the geo-location warrants/orders. Further, as explained in the R&R, even if Henry had established standing, his motion to suppress would fail because the tapes were timely sealed and he has not demonstrated that he was prejudiced by any failure relating to the return of the geo-locations authorizations.

Accordingly, the Court ADOPTS AS ITS ORDER the R&R [729] and DENIES Henry's motion to suppress [601].

IT IS SO ORDERED.

FootNotes


1. The Eleventh Circuit has adopted as binding precedent all Fifth Circuit decisions issued before October 1, 1981, as well as all decisions issued after that date by the Unit B panel of the former Fifth Circuit. Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982); see also United States v. Schultz, 565 F.3d 1353, 1361 n. 4 (11th Cir. 2009) (discussing the continuing validity of Nettles).
2. Macort dealt only with the standard of review to be applied to a magistrate's factual findings, but the Supreme Court has held that there is no reason for the district court to apply a different standard to a magistrate's legal conclusions. Thomas v. Arn, 474 U.S. 140, 150 (1985). Thus, district courts in this circuit have routinely applied a clear-error standard to both. See Tauber v. Barnhart, 438 F.Supp.2d 1366, 1373-74 (N.D. Ga. 2006) (collecting cases). This is to be contrasted with the standard of review on appeal, which distinguishes between the two. See Monroe v. Thigpen, 932 F.2d 1437, 1440 (11th Cir. 1991) (when a magistrate's findings of fact are adopted by the district court without objection, they are reviewed on appeal under a plain-error standard, but questions of law remain subject to de novo review).
Source:  Leagle

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