Opinion
Case No. 8:01CR3036
December 26, 2002
MEMORANDUM AND ORDER
INTRODUCTION
This matter is before the Court on the Report and Recommendation (Filing No. 48) issued by Magistrate Judge Kathleen Jaudzemis recommending denial of the Motion to Dismiss filed by the Defendant, Floyd L. Morrison (Filing No. 37). Morrison filed a Statement of Objections to the Report and Recommendation (Filing No. 51) as allowed by 28 U.S.C. § 636(b)(1)(C) and NELR 72.4.
FACTUAL BACKGROUND Charges and Detainer
On March 21, 2001, Morrison, a prisoner in the custody of the Missouri Department of Corrections, was charged in a four-count Indictment with: bank robbery (Count I); using, carrying and brandishing a firearm during and in relation to a crime of violence, i.e., the bank robbery charged in Count I (Count II); being a felon in possession of a firearm (Count III); and interstate transportation of a stolen vehicle (Count IV). On March 22, 1001, an arrest warrant was issued. On September 17, 2001, a detainer dated September 14, 2001, was received by the records office of the Missouri correctional center and filed in the correctional center records on September 18, 2001. (TR 35:2-3; 38:23-39:5; Ex. 1.) On October 10, 2001, Floyd Morrison was advised of the detainer and given a copy. (TR 40:5-7; Ex. 1.) The detainer further reflects that Morrison asserted his right to demand a speedy trial. (Ex. 1.) Accordingly, the detainer provides specific instructions: "[I]f the prisoner demands a speedy trial, forward the Detainer together with the Certificate of Inmate Status by registered or certified mail to the U.S. Attorney for the — District of NEBRASKA and the U.S. District Court for the — District of NEBRASKA." (Ex. 1, at 2.)
Morrison's Testimony
At the evidentiary hearing before the Magistrate Judge, Morrison testified that when he received the detainer he was serving a sentence in the Missouri Department of Corrections. (TR 7:15-19.) He testified that he reviewed with his caseworker the copies of the detainer and then signed the forms. Morrison stated that he watched his caseworker insert three forms in three envelopes and place the envelopes in the prison mailbox. (TR 10:6-22.) Morrison was not sure whether the envelope addressed to the U.S. District Court was addressed to Lincoln, Nebraska, or Omaha, Nebraska, but he thought that the address was Lincoln. (TR 10:23-11:7; 17:2-5.) Morrison testified that he received return receipts from the U.S. Attorney's Office and the Marshal's office, but that he did not receive a return receipt from the U.S. District Court. (TR 11:17-21; 21:25-22:9; Ex. 9). The only receipt in evidence relates to the delivery to the U.S. Attorney's Office on October 16, 2001, by certified mail. (Ex. 9.) A notation "cc: to Marshal's 10-17-01" on the detainer indicates that the U.S. Attorney's Office sent a copy of the detainer to the Marshal's office on that date. (Ex. 8, at 4.) Morrison testified that he received no response to his submission of the signed forms. (TR 14:20-24.) Morrison testified that in January 2002 he wrote to the Court and the U.S. Attorney's Office to ask about the status of his request. He stated that he did so because the detainer instructed him to inquire periodically as to whether his request for a speedy trial had been received by the U.S. Attorney's Office and the Court. (TR 19:20-21:11; Ex. 1, at 2.) The evidence, however, does not reflect that any letters were received from Morrison by the U.S. Attorney's Office or the Court. Morrison testified that, throughout these proceedings, he received copies of all court orders, including the order dated March 26, 2002, excluding time under the Interstate Agreement on Detainers Act [IADA], citing the IADA and Speedy Trial Act. (TR 27:3-11.)
Additional Evidence
On April 9, 2001, Alan Everett sent a facsimile to Dean Shepard at a Missouri facsimile number, asking for information on the Missouri charges and about the length of time it would take to bring Morrison to Nebraska to face the federal charges. (Ex. 7.)
On March 6, 2002, the U.S. Marshal sent by facsimile copy to Assistant United States Attorney Alan Everett in the Omaha U.S. Attorney's Office a copy of the detainer. Included was a note indicating that Jane Loeck of the Marshal's Office reviewed the file, noticed the speedy trial demand of October 10, 2001, and wished to ensure that Mr. Everett had been notified of the demand. (Ex. 8, at 2.) Also on March 6, 2002, a secretary in the U.S. Attorney's Omaha office sent the Marshal's communication to Mr. Everett in his Lincoln Office. (Ex. 8, at 1.)
Also on March 6, 2002, Mr. Everett filed an Application and Order for Writ of Habeas Corpus Ad Prosequendum signed by the Magistrate Judge on the same date. The Writ required Morrison's appearance in this district for an initial appearance on or after March 11, 2002. (Ex. 3.) Morrison first appeared in this district at his initial appearance in Omaha, Nebraska, on March 14, 2002. On that same date, the Court appointed Assistant Federal Public Defender Carlos Monzon to represent Morrison. (Filing Nos. 4, 6.)
On March 4, 2002, the case was reassigned from the Lincoln docket to the undersigned in Omaha.
At the initial appearance, in Morrison's presence, Monzon represented that he "might" file a motion to suppress identification(s). Also at the initial appearance, Monzon waived on behalf of Morrison the issue of detention. It was noted that Morrison was serving a sentence on other charges in Missouri. The specific issue of the IADA was not raised by counsel, Morrison or the Court. (Audiotape of Initial Appearance.)
Assistant U.S. Attorney Jan Sharp explained the following in a March 15, 2002, electronic mail transmission ("e-mail") to the Magistrate Judge's courtroom deputy:
It appears that the demand was sent to our office in a timely fashion, however, someone in this office dropped the ball. The demand went into the case file and was not brought to the attention of the then assigned AUSA, Alan Everett. The U.S. Marshal recently brought the matter to our attention. Because Alan Everett is consumed with prepping the Nebraska Beef case the Morrison case has been reassigned to Fred Franklin. We immediately made arrangements to get Mr. Morrison into the District and he had his initial appearance yesterday.
(Ex. 4.)
Sharp also stated in his e-mail that he believed that the 180 days under the IADA would have run on April 8, 2002. (Ex. 4.)
A trial order was first issued setting the case for trial on April 29, 2002. (Filing No. 10.) On March 18, 2002, an order was issued advancing the trial date to April 1, 2002. (Filing No. 11.)
On March 26, 2002, however, Mr. Monzon timely filed motions to suppress various out-of-court identifications. (Filing Nos. 13, 14.) On March 27, 2002, Mr. Monzon also filed a motion to sever Counts III and IV. (Filing No. 16.) On March 28, 2002, the Magistrate Judge continued the trial until the resolution of the motions to suppress, excluding the time between March 26, 2002, and a date to be set later by the Court pursuant to the IADA, citing to Article VI of the IADA, the Speedy Trial Act, 18 U.S.C. § 3161(h)(8)(A) (B), and United States v. Cephas, 937 F.2d 816 (2d Cir. 1991). (Filing No. 15.) On April 2, 2002, the Magistrate Judge set the motions to suppress for hearing. (Filing No. 17.) On April 8, 2002, Mr. Monzon moved to withdraw from further representation of Mr. Morrison due to a conflict of interest within his office. (Filing No. 18.) On April 15, 2002, the Magistrate Judge granted Mr. Monzon's motion to withdraw and appointed Clarence Mock to represent Morrison. (Filing No. 19.)
The Second Circuit Court of Appeals held in Cephas that the IADA and Speedy Trial Act should be construed together. Cephas, 937 F.2d at 819.
On May 1, 2002, a status conference was held pursuant to Federal Rule of Criminal Procedure 17.1. (Filing No. 23.) Morrison was not present for the conference, at which scheduling matters in light of the IADA and the previously filed motions to suppress and to sever were discussed. Mock stated that he would not withdraw the motions to suppress and sever unless Morrison would instruct him to do so. The Court noted its interest in moving the case forward in light of Morrison's notice that he did not wish any delay. (Audiotape of Rule 17.1 conference.)
The motions to suppress and to sever were heard on May 30, 2002. (Filing No. 25.) On June 19, 2002, a letter written by Morrison was filed. In the letter, Morrison stated that he had exercised his right to a speedy trial and that "additional delays [were not] attributable" to him. (Filing Nos. 29, 30.) The letter was construed as a motion arguing that Mr. Mock was ineffective and that the time attributable to the motions filed in his behalf by Mr. Monzon should not have been attributed to him either under the Speedy Trial Act or the IADA. (Filing No. 30.) On July 18, 2002, the Magistrate Judge issued a report and recommendation denying the motions to suppress, and on July 18, 2002, she denied the motion to sever. (Filing Nos. 31, 32.) On July 30, 2002, Morrison objected through counsel to the Report and Recommendation. (Filing No. 33.) Trial was then scheduled for Tuesday, September 3, 2002. (Filing No. 34.) On August 28, 2002, the Court adopted the Magistrate Judges' report and recommendation denying the motion to suppress. (Filing No. 35.) On the eve of trial on Friday, August 30, 2002, at 2:09 p.m., Morrison filed a motion to dismiss the Indictment, arguing that his case had not been brought to trial within the 180-day period prescribed under the IADA, and that the Court had not granted a continuance under the IADA "`for good cause shown, in open court, [with] the prisoner or his counsel being present.'" (Filing No. 37 (quoting 18 U.S.C. App. 2, § 2).) In light of the filing of the motion, on Tuesday, September 3, 2002, the parties appeared before the Magistrate Judge. Trial was continued pending resolution of the motion to dismiss, which was heard on October 23, 2002. (Filing Nos. 40, 42, 43.) On December 2, 2002, the Magistrate Judge issued a Report and Recommendation recommending that the motion to dismiss be denied.
On Monday, September 2, 2002, the Court was closed for the Labor Day Holiday.
On December 11, 2002, Morrison objected to the Report and Recommendation. (Filing No. 51.)
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court shall make a de novo determination of those portions of the report, findings, and recommendations to which the Defendant has objected. The Court may accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendations. The Court may also receive further evidence or remand the matter to the Magistrate Judge with instructions.
The Court has conducted a de novo review of all issues relating to the motion to dismiss pursuant to the IADA.
STATEMENT OF FACTS IN REPORT AND RECOMMENDATION
The Magistrate Judge provided a detailed account of the events relating to the relevant issues. The Court has considered the transcript of the hearing conducted by the Magistrate Judge on October 23, 2002 (Filing No. 46). Additionally, this Court listened to audiotapes of Morrison's initial appearance and Rule 17.1 conference before the Magistrate Judge. (See Filing Nos. 6 and 23.) The Court also carefully viewed the evidence. (Filing No. 44.) Based on the Court's de novo review of the evidence, two factual findings merit additional comment.
First, the Report and Recommendation states that Morrison remembered that the form addressed to the Court was addressed to Lincoln as opposed to Omaha. (Filing No. 48, at 3.) However, Morrison testified that while he thought that the envelope was addressed to the Court in Lincoln, he was not completely sure whether the envelope was addressed to the Court in Lincoln or Omaha. (TR 10:23-11:7; 17:2-5.)
Second, the Report and Recommendation states that Morrison only received one return receipt from the U.S. Attorney's Office. (Filing No. 48, at 3.) While the evidence only includes that receipt, the Court acknowledges Morrison's testimony that he received return receipts from the U.S. Attorney's Office and the Marshal's office. (TR 11:17-21; 21:25-22:9; Ex. 9.)
OBJECTIONS
On December 11, 2002, Morrison objected to the following findings in the Report and Recommendation: that Morrison failed to notify the Court of his assertion of his right to a speedy trial; that the pretrial motions filed by Monzon resulted in excludable time under the IADA; that Morrison ratified by his conduct the filing and litigation of the pretrial motions submitted by Monzon; and that Morrison was "unable to stand trial" within the meaning of the IADA as a result of the filing of Monzon's pretrial motions. (Filing No. 51.) The Objections fall short of the requirements set out in NELR 72.4 and in the Report and Recommendation. A brief was not submitted in support of the Objections, which "may" be deemed an abandonment of the Objections. (NELR 72.4; Filing No. 48, at 13.) Also, the Objections merely set out the portions of the Report and Recommendation objected to, without specifying the bases for the Objections. (NELR 72.4.) The Court recognizes the importance of the issues raised and therefore will not deem the Objections "abandoned." However, due to the lack of the presentation of legal bases for the objections and the failure to submit a brief in support of the Objections, the Court will decline to address each individual Objection as set out in the Defendant's statement. Rather, the Court will review de novo the general issues that relate to the motion to dismiss.
ANALYSIS
The Magistrate Judge reasoned that the IADA does not apply because Morrison failed to provide the Court with notice of his desired right to a speedy trial. However, in the event that the IADA does apply, the Magistrate Judge found: the 180-day time period did not start to run in October 2001; the time between March 26, 2002, and August 28, 2002, when the motions to suppress and to sever were under submission, was excluded under both the Speedy Trial Act and Articles III(a) and VI of the IADA; and Morrison consented on the record to the exclusion of time necessary for consideration of the motion to dismiss. (Filing No. 48.)
Morrison's consent apparently occurred during the hearing on September 3, 2002. (Filing No. 40.)
The IADA Article III
Article III of the IADA sets out the procedure that a prisoner may use in demanding a speedy disposition of charges that result in the filing of a detainer. The warden of the prisoner's institution of incarceration must inform the prisoner promptly of the source and contents of any detainer lodged and also of the prisoner's right to request a final disposition of the charges. 18 U.S.C. App. 2, § 2, art. III(c). If such a request is made, the IADA provides that a defendant must be tried:
within one hundred and eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint.
18 U.S.C. App. 2, § 2, art. III(a) (emphasis added).
However, the procedure contemplates the possibility of continuances: "Provided, That, for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance." Id. (emphasis added).
Article IV
Once a detainer is already lodged, Article IV of the IADA provides a means for the government to secure a prisoner's presence for disposition of the charges. Once a detainer has been filed, the government may have the prisoner made available by filing "a written request for temporary custody or availability." Id., art. IV(a). Specifically, Article IV(a) provides:
The appropriate officer of the jurisdiction in which an untried indictment, information, or complaint is pending shall be entitled to have a prisoner against whom he has lodged a detainer and who is serving a term of imprisonment in any party State made available in accordance with article V(a) hereof upon presentation of a written request for temporary custody or availability to the appropriate authorities of the State in which the prisoner is incarcerated.
Id. (emphasis added).
A writ of habeas corpus ad prosequendum is considered a "written request for temporary custody." United States v. Mauro, 436 U.S. 340, 362 (1978). Once the government obtains the presence of a prisoner pursuant to Article IV, two limitations apply. First is the 120-day time limitation, which includes an identical provision for continuances upon a finding of "good cause" as stated in Article III(a):
Neither the parties nor the Magistrate Judge have discussed whether Article IV applies in Morrison's case.
[I]n respect of any proceeding made possible by this article, trial shall be commenced within one hundred and twenty days of the arrival of the prisoner in the receiving State, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.
Id., art. IV(c) (emphasis added).
The second limitation is the requirement that the prisoner be tried on the charges in the receiving state before returning the defendant to the state of imprisonment:
If trial is not had on any indictment, information, or complaint contemplated hereby prior to the prisoner's being returned to the original place of imprisonment pursuant to article V(e) hereof, such indictment, information, or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
Id., art. IV(e).
Article V
Article V provides for dismissal of an indictment if Articles III or IV have been violated:
[I]n the event that an action on the indictment, information, or complaint on the basis of which the detainer has been lodged is not brought to trial within the period provided in article III or article IV hereof, the appropriate court of the jurisdiction where the indictment, information, or complaint has been pending shall enter an order dismissing the same with prejudice, and any detainer based thereon shall cease to be of any force or effect.
Id., art. V.
Article VI
Article VI provides that the deadlines set out in Articles III and IV are tolled when the prisoner is "unable to stand trial." Id., art. VI(a).
Application of the IADA and the Start of the IADA Clock
The purpose of the IADA is to permit a prisoner serving a sentence in one jurisdiction while facing charges in another jurisdiction a "greater degree of certainty as to his future and to enable prison authorities to plan more effectively for his rehabilitation and return to society." S. Rep. No. 91-1356, 1970 U.S.C.C.A.N. 4864, 4865 (1970). In order to invoke the IADA:
The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections, or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
18 U.S.C.A. App. 2, § 2, art. III(b) (emphasis added).
The Supreme Court has interpreted this provision literally, holding that the IADA time period does not begin to run "until the prisoner's request for final disposition of the charges against him has actually been delivered to the court and prosecuting officer of the jurisdiction that lodged the detainer against him." Fex v. Michigan, 507 U.S. 43, 52 (1993) (emphasis added).
The Court finds that the IADA applies, as notice was provided to the Court on more than one occasion of Morrison's desire for a speedy disposition of the federal charges. The Court agrees with the Magistrate Judge that the IADA clock did not start to run in October 2001. More specifically, this Court finds that, if Article IV applies, in Morrison's case the 120-day IADA clock started to run on or about March 14, 2002, upon Morrison's "arrival in the receiving State" pursuant to the Writ of Habeas Corpus Ad Prosequendum. Id., art. IV(c).
The significance of the Writ (Filing No. 3) in light of Article IV of the IADA was not addressed either by the parties or the Magistrate Judge.
Alternatively, the Court finds that the 180-day time period under Article III of the IADA started to run on March 15, 2002, upon the Court's receipt of AUSA Sharp's e-mail. (Ex. 4.) The Ninth Circuit Court of Appeals held that a letter from a public defender to the court including the information required, i.e., place of imprisonment and notice of speedy trial request, satisfied the IADA notice provision. Johnson,196 F.3d at 1004. The emphasis in Johnson was on the communication of the necessary information to the court rather than the specific source of the information. See id. Applying Johnson, Sharp's e-mail included the information necessary to constitute notice, and this e-mail is the first indication to the Court of Morrison's request for a speedy trial.
The earlier delivery of the notice to the U.S. Attorney did not constitute delivery to the Court. Fex, 507 U.S. at 52. Similarly, neither did delivery of the notice to the U.S. Marshal constitute delivery to the Court. United States v. Johnson, 196 F.3d 1000, 1003-04 (9th Cir. 1999).
Even if Sharp's e-mail would not be considered sufficient notice, the Court finds alternatively that Morrison's desire for a speedy trial was communicated clearly to the Court in his letter regarding alleged ineffective assistance of counsel filed on June 19, 2002. It is clear from the Magistrate Judge's order, issued in response to the motion, that the Court recognized the applicability of the IADA and Morrison's desire for a speedy trial. (Filing No. 30.) Under these facts, the 180-day period under Article III would have begun on June 19, 2002.
The Time Was Tolled
Whether the Court proceeds under Article III or IV of the IADA, "for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance." 18 U.S.C. App. 2, § 2, art. III(a); art. IV(c).
Waiver
In New York v. Hill, 528 U.S. 110 (2000), the Supreme Court held that counsel could waive a defendant's right under the IADA without the express agreement of the defendant. Id. at 115. In Hill, the Court acknowledged the general rule that presumes a defendant's ability to waive the most basic constitutional and statutory rights. Id. at 114. The Court found that for "certain fundamental" rights, a defendant must make an "informed" waiver. Id. For other rights, however, the Court determined that counsel must retain the sole ability to manage certain strategic matters, including which legal arguments to pursue, evidentiary objections to raise, and which stipulations to agree to. Id. at 114-15. "Absent a demonstration of ineffectiveness, counsel's word on such matters is the last." Id. at 115. The Court stated:
Rights under the IADA are statutory. Snyder v. Sumner, 960 F.2d 1448, 1452 (9th Cir. 1992).
Deciding whether to seek suppression of evidence is considered an exercise of trial strategy. United States v. Johnson, 614 F.2d 622, 623 (8th Cir. 1980). Given the nature of the charges and the penalties, i.e., a minimum seven years' consecutive sentence for Count II, 18 U.S.C. § 924(c)(1)(A)(ii), and the nature of the motions, counsel undoubtedly filed motions in order to zealously represent his client.
Scheduling matters are plainly among those for which agreement by counsel generally controls. This case does not involve a purported prospective waiver of all protection of the IAD's time limits or of the IAD generally, but merely agreement to a specified delay in trial. When that subject is under consideration, only counsel is in a position to assess the benefit or detriment of the delay to the defendant's case. Likewise, only counsel is in a position to assess whether the defense would even be prepared to proceed any earlier. Requiring express assent from the defendant himself for such routine and often repetitive scheduling determinations would consume time to no apparent purpose. The text of the IAD, moreover, confirms what the reason of the matter suggests: In allowing the court to grant "`good-cause continuances'" when either "`prisoner or his counsel`" is present, it contemplates that scheduling questions may be left to counsel.
Id. (quoting 18 U.S.C.A. App. 2, § 2, art. III(a) (emphasis added)).
The Supreme Court analyzed the language of Article III(a) that a prisoner or counsel be present in court, finding that the requirement relates "primarily, if not exclusively," to requests by the government that have not been agreed to by the defense. Id. at 116. The Court found that the language in Article III(a) was insufficient to overcome the general presumption of waiver in circumstances involving an agreed-upon delay of the trial date. Id. Because the Court found waiver, it declined to decide whether an agreed-upon extension of a trial date falls within the "good-cause" provision requiring, absent a waiver, the presence of the prisoner or counsel in court. Id. at 116 n. 1.
The phrase "in open court" has been interpreted not to mean literally only in a courtroom. Rather, the phrase has been construed "`to prohibit ex parte and sua sponte continuances.'" United States v. Odom, 674 F.2d 228, 231 (4th Cir. 1982) (quoting United States v. Ford, 550 F.2d 732, 743 n. 30 (2d Cir. 1977)).
In summary, in Morrison's case counsel appeared to make sound strategic decisions to file motions to suppress, to sever, and to dismiss. As a result, counsel's strategic decisions are attributable to Morrison. Despite the applicability of the IADA, waiver of the time necessary to decide the motions is presumed, IADA Construed Together With the Speedy
Trial Act
Although the Eighth Circuit Court of Appeals has not yet decided this question, other circuits have determined that the Speedy Trial Act and the IADA share the same purpose and therefore should be construed together. United States v. Collins, 90 F.3d 1420, 1427 (9th Cir. 1996) (interpreting Article III of the IADA); United States v. Cephas, 937 F.2d 816, 819 (2d Cir. 1991) (construing the "good cause" language of Articles III(a) and IV(c) of the IADA); United States v. Nesbitt, 852 F.2d 1502, 1516 (7th Cir. 1988) (construing Articles III and IV of the IADA in the context of a continuance of a trial date and various pretrial motions, including motions to suppress); United States v. Roy, 771 F.2d 54, 59 (2d Cir. 1985) (construing the "unable to stand trial language" of Article VI(a) of the IADA in the context of an interlocutory appeal of the government from the decision granting the defendant's motion to suppress); United States v. Odom, 674 F.2d 228, 231-32 (4th Cir. 1982) (discussing Article IV(c) of the IADA in deciding pretrial motions and a continuance of the trial date). See also United States v. Taylor, 861 F.2d 316, 320 (1st Cir. 1988) (agreeing "in principle" with the approach that a defendant waives the IADA period during the time needed to resolve matters raised by him).
Accordingly, even assuming the application of the 120-day period in Article IV, and the starting of the clock upon Morrison's presence in this jurisdiction on or about March 14, 2002, the IADA clock has not run. The Speedy Trial Act applied, following: the filing of the motions to suppress and sever on March 26 and 27, 2002; the Magistrate Judge's March 28, 2002, order excluding time from the IADA clock until resolution of the motions and also citing the Speedy Trial Act; the pendency of the motions to suppress and sever until August 28, 2002; and the filing of the motion to dismiss on August 30, 2002. The IADA is construed together with the Speedy Trial Act.
CONCLUSION
For the reasons discussed, the Court finds that the motion to dismiss should be denied.
IT IS ORDERED:
1. The Magistrate Judge's Report and Recommendation (Filing No. 48) is adopted, with the modifications discussed;
2. The Statement of Objections to the Report and Recommendation (Filing No. 51) is denied; and
3. The Defendant's Motion to Dismiss (Filing No. 37) is denied.
DATED this 26th day of December, 2002.