Summary
denying motion to dismiss or, in the alternative, motion for bill of particulars with regard to firearm-possession count of indictment when defendant could not explain how indictment failed "to provide sufficient factual detail to enable him to rely upon a judgment under the indictment as a bar against double jeopardy for a subsequent prosecution of the same offense, as the indictment clearly identifies each firearm by make, model, type, and serial number"
Summary of this case from Thomas v. StateOpinion
CRIMINAL ACTION FILE NUMBER 1:13-cr-381-1-TCB
07-16-2014
UNITED STATES OF AMERICA v. EDWARD SHANE SMALLWOOD, Defendant.
ORDER
This case is before the Court is the magistrate judge's report and recommendation [64]. No objections to the R&R have been filed.
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) (en banc)) (internal quotation mark omitted). 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).
The Eleventh Circuit has adopted as binding precedent all Fifth Circuit decisions issued before October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). Additionally, all decisions issued after that date "by a non-unit panel of the Former Fifth, the full en banc court of the Former Fifth, or Unit B panel of the Former Fifth Circuit" are binding precedent absent a contrary en banc Eleventh Circuit decision. 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).
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) (holding that 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).
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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 and complete review of the R&R and finds no clear error in its factual findings or legal conclusions. Therefore, the Court ADOPTS AS ITS ORDER the R&R [64]. Accordingly, Defendant Edward Smallwood's motions to suppress evidence and statements [20 & 21], as well as his motion to dismiss counts one and three of the indictment, or, in the alternative, for a bill of particulars [27] is DENIED, and his motion to suppress the testimony and statements of Mrs. Smallwood is GRANTED IN PART and DENIED IN PART.
IT IS SO ORDERED this 16th day of July, 2014.
__________
Timothy C. Batten, Sr.
United States District Judge