ORDER

MARK H. COHEN, District Judge.

This action comes before the Court on the Report and Recommendation ("R&R") of Magistrate Judge Justin S. Anand [Doc. 45] recommending that Defendant's Amended Motion to Disqualify Counsel and to Suppress Statements ("Def.'s Mot.") [Doc. 33] be denied. The Order for Service of the R&R [Doc. 46] provided notice that, in accordance with 28 U.S.C. § 636(b)(1), the parties were authorized to file objections within fourteen (14) days of the receipt of that Order. Defendant has filed objections to the R&R ("Def.'s Objs.") [Doc. 48].

I. LEGAL STANDARD

In reviewing a Magistrate Judge's R&R, the district court "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). "Parties filing objections to a magistrate's report and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or general objections need not be considered by the district court." United States v. Schultz, 565 F.3d 1353, 1361 (11th Cir. 2009) (quoting Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)). If there are no specific objections to factual findings made by the Magistrate Judge, there is no requirement that those findings be reviewed de novo. Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993) (citations omitted). Absent objection, the district court judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge," 28 U.S.C. § 636(b)(1), and may accept the recommendation if it is not clearly erroneous or contrary to the law. FED. R. CRIM. P. 59(a). In accordance with 28 U.S.C. § 636(b)(1) and Rule 59 of the Federal Rules of Criminal Procedure, the Court has conducted a de novo review of those portions of the R&R to which Defendant objects and has reviewed the remainder of the R&R for plain error. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).

II. DISCUSSION

As an initial matter, in support of his Objections, Defendant "relies upon the argument set out in his previously-filed briefs and adopts the same as his objections to the R&R." Def.'s Objs. at 1. "[A] party does not state a valid objection to an R&R by merely incorporating by reference previous filings." Hammonds v. Jackson, No. 13-CV-711-MHS, 2015 WL 12866453, at *6 n.2 (N.D. Ga. May 18, 2015); see also Jacobs v. Usner, No. CV 08-470, 2016 WL 4803917, at *1 (W.D. Pa. Sept. 14, 2016) ("When filing objections to a report and recommendation, underlying briefs may not be incorporated by reference."); Masimo Corp. v. Philips Elec. N.A. Corp., 62 F.Supp.3d 368, 376 (D. Del. 2014) (holding that underlying briefs may not be incorporated by reference when filing objections to a report and recommendation); Morrison v. Parker, 90 F.Supp.2d 876, 878 (W.D. Mich. 2000) (citations omitted) ("Plaintiffs' general, nonspecific objections, purporting to incorporate by reference their earlier brief, are tantamount to no objection at all and do not warrant further review."). Accordingly, the Court will not review the prior arguments made by Defendant to Judge Anand, but only will consider specific objections made to the R&R.

Defendant first criticizes the R&R for being "internally inconsistent" as to whether Rule 4.2(a) of the Georgia Rules of Professional Conduct, which restricts a lawyer's communications with another person known to be represented by a lawyer, also bars the government's use of a cooperating informant to communicate with a represented defendant prior to the issuance of an indictment. Def.'s Objs. at 1-3. The relevant rule states as follows: "A lawyer who is representing a client in a matter shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order." Ga. R. Prof. Conduct 4.2(a). The commentary to Rule 4.2(a) provides an important exception with respect to law enforcement activities:

Ga. R. Prof. Conduct 4.2(a), cmts. 1-2.

Judge Anand found as follows: (1) there appears to be no Georgia judicial precedent as to whether pre-indictment, covert criminal investigative activities are authorized under Rule 4.2, (2) at least one Georgia Superior Court Judge and many federal courts have found such conduct to be permissible, (3) the few cases cited by Defendant that have found or suggested potential violations involved overt, direct contacts by prosecutors or law enforcement agents directed by them as opposed to undercover informants, and (4) there are strong policy reasons why Rule 4.2(a) should not apply to legitimate, covert investigation techniques. R&R at 4-14. Notwithstanding the above, because there is no binding judicial precedent in Georgia, Defendant argues that the Court should conclude that the United States' activity in using a cooperating witness (referred to in the indictment as "M.B.") is illegal because it violates Rule 4.2(a) and there is an absence of Georgia legal precedent. Def.'s Mot. at 10; Def.'s Objs. at 2. Judge Anand considered this argument and rejected it, finding that

R&R at 16-17 (footnote omitted).

This Court agrees with Judge Anand. Defendant's position that, in the absence of binding precedent as to what is acceptable conduct under a Georgia Rule of Professional Conduct, all such conduct becomes automatically illegal, would lead to absurd results. Even when there is no binding precedent with respect to the interpretation of constitutional, statutory, or regulatory provisions, courts in this circuit frequently consider the authority of other courts that have considered the same issue to be persuasive. See, e.g., Carden v. Town of Harpersville, No. 2:15-CV-01381-RDP, 2017 WL 4180858, at *19 (N.D. Ala. Sept. 21, 2017); United States v. $83,274.51, No. 2:13-CV-153-JEO, 2013 WL 5524729, at *4 (N.D. Ala. Sept. 30, 2013); United States v. Jackson, No. CR295CR174-WHA, 2007 WL 1125646, at *1 (M.D. Ala. Apr. 16, 2007). Moreover, the modifier "applicable" to the term "judicial precedent" in the commentary to Rule 4.2(a) indicates that the precedent is not limited to "binding" authority but includes persuasive authority if the judicial opinion is otherwise "applicable" to the conduct at hand.

Defendant's position is particularly curious because he finds fault with Judge Anand's failure to rely upon the district court's decision in United States v. Tapp, No. CR107-108, 2008 WL 2371422, at *1 (S.D. Ga. June 4, 2008), a case which, of course, is not binding authority. This Court does not find Tapp to be persuasive authority in the present context either because it did not involve the question of whether Rule 4.2(a) prohibits the government's use of a cooperating informant against the target of an investigation prior to indictment when the target has retained a lawyer.

In Tapp, the target of an investigation was called by the prosecutor before the grand jury and voluntarily appeared and testified, but the prosecutor did not notify the target's lawyer. Tapp, 2008 WL 2371422, at *3. The Tapp court first considered whether federal prosecutors should be exempted from the so-called "No-Contact Rule" and concluded (again, after considering decisions from courts outside this circuit) that "there seems to be a unified perception by the courts that the No-Contact Rule should apply to all lawyers, including federal prosecutors." Id. at *15. After a review of several cases which discussed whether the No-Contact Rule should apply to pre-indictment prosecutorial conduct (about which courts are not in harmony), the Tapp court found persuasive the reasoning that there should not be an absolute bar upon such conduct, that situations should be addressed on a case-by-case basis, and that "this Court believes that pre-indictment contact with representative persons should not be the [g]overnment's standard practice." Id. at *15-16. The bottom line in Tapp was that the court found the conduct of the prosecutor to be a "bad practice" which "served no investigative purpose" and would have removed the prosecutor from the case had she not already been removed by the United States Attorney. Id. at *19-20.

Tapp involved a direct contact by the prosecutor, and there was no such conduct complained of in this case. The cases cited by Judge Anand distinguish that situation and hold that disciplinary rules similar to Rule 4.2(a) do not prohibit criminal investigative techniques such as the one used in this case. See R&R at 5-6.

United States v. Koerber, 966 F.Supp.2d 1207, 1233 (D. Utah 2013).

Next, Defendant, without citing any authority, contends that the R&R would establish a precedent that "there are virtually no limits on the government's ability to conduct criminal investigations prior to indictment." Def.'s Objs. at 3. The R&R is limited to the situation at hand, namely, did the United States in this case violate Rule 4.2(a) when it used a cooperating informant prior to indictment? Judge Anand and this Court find it did not. Indeed, were Defendant's position to be accepted, any person fearful of being a future target in a federal criminal investigation could retain an attorney, have that attorney write a letter to every United States Attorney advising of his representation of the individual, and any future criminal investigation of that individual that involved a conversation with an informant would be prohibited.

Defendant objects to the fact that the R&R focuses "almost entirely" on Rule 4.2(a) "and largely ignores Defendant's argument based on Rule 3.4" of the Rules of Professional Conduct. Def.'s Objs. at 4. Judge Anand gave that latter argument as much attention as Defendant did himself. See Def.'s Am. Mot. at 8-9 (Defendant's argument that "The Prosecutors Violated Rule 3.4" comprises just under eight lines of a sixteen-page brief). Rule 3.4(g) provides that a lawyer shall not "use methods of obtaining evidence that violate the legal rights of the opposing party or counsel." Ga. R. Prof. Conduct 3.4(g). Defendant cites no authority that supports his contention that using an informant to communicate with a suspect would violate his legal rights.

Finally, Defendant asserts that the R&R "misapplies Defendant's argument regarding the McDade Amendment." Def.'s Objs. at 4 (citing R&R at 19). As a matter of fact, in his motion, Defendant did not make much of an argument regarding the federal statute known as the McDade Amendment, 28 U.S.C. § 530B. The entire reference in Defendant's motion was as follows:

Def.'s Mot. at 5. There was then a footnote which stated: "The law also provides that `[t]he Attorney General shall make and amend rules of the Department of Justice to assure compliance with this section.' Id. at § 530B(b)." Id. There was no further reference to these code sections in the remainder of Defendant's Motion.

Defendant now specifically asserts that if the United States' conduct violated the Georgia Rules of Professional Conduct, then it also violated the McDade Amendment, which would warrant suppression of the evidence obtained from the informant in this case. Def.'s Objs. at 4-5. Pretermitting the question of whether this specific argument was properly raised in the first instance before Judge Anand, Defendant recognizes that this position is contrary to the decision of the United the United States Court of Appeals for the Eleventh Circuit in United States v. Lowery, 166 F.3d 1119 (11th Cir. 1999), which held as follows:

Id. at 1125 (footnote omitted). Although this is binding precedent2, Defendant contends he "has asserted a good faith argument for reversal of this precedent" and is making his objection to preserve the record. Def.'s Objs. at 5.

III. CONCLUSION

Accordingly, after a de novo review of those portions of the R&R to which Defendant objects, the Court OVERRULES his objections [Doc. 48]. Finding no clear error in the remaining portions of the R&R, the Court ADOPTS the R&R [Doc. 45] as the Opinion and Order of the Court.

It is hereby ORDERED that Defendant's Amended Motion to Disqualify and to Suppress Statements [Doc. 33] is DENIED.

IT IS SO ORDERED.