Opinion
CRIMINAL ACTION FILE NUMBER 1:11-CR-212-TCB
03-15-2012
UNITED STATES OF AMERICA, v. JHONNY VAZQUEZ-VELAZQUEZ and RAUL VALENCIA-HERNANDEZDefendants.
ORDER
This case is currently before the Court on Magistrate Judge Gerrilyn G. Brill's Report and Recommendation (the "R&R") [57]. 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)). 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, as well as all decisions issued after that date by a 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).
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. Am, 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 (nth 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).
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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 or legal conclusions. Therefore, the Court ADOPTS AS ITS ORDER the R&R [57]. Defendant Vazquez-Velazquez's motion to suppress evidence [20] is GRANTED, motion to suppress statements [21] is GRANTED, and motion to suppress identification testimony [22] is DENIED, Defendant Valencia-Hernandez's motion to sever [27] is DENIED and motions to suppress evidence and statements [28 & 29] are GRANTED.
IT IS SO ORDERED this 16th day of March, 2012,
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Timothy C. Batten, Sr.
United States District Judge