Opinion
Case No. 8:09-cr-585-T-24TBM.
July 25, 2011
ORDER
THIS CAUSE is before the court on the United States' Request for Reconsideration of Recommendation Concerning Marian Morgan's Motion to Suppress (Doc. 162) and Defendant Marian Morgan's Motion to Strike and Response to the United States' Request for Reconsideration of Recommendation Concerning Marian Morgan's Motion to Suppress (Doc. 166). By its motion, the government requests the undersigned to reconsider the prior Report and Recommendation (Doc. 149) wherein it is recommended that Marian Morgan's Motion to Suppress (Doc. 65) be granted as to all the tangible items (apart from computer based and cellular phone based information) seized from Ms. Morgan upon her arrival and arrest in the United States except for that exhibit identified by the government as "1B11." By this motion, which includes a supplemental affidavit from FBI Special Agent Barbara Collazo (Collazo), the government urges that the undersigned misunderstood Collazo's testimony as it related to other items of evidence within Ms. Morgan's property identified as "1B8," "1B9," and "1B16," and that the motion should be denied as to those items as well. In response, Ms. Morgan moves to strike the request for reconsideration as an untimely and inappropriate pleading under Fed.R.Crim.P. 59. And, pursuant to Rule 59(a) and (b)(2), she urges that the government has now waived any objections to the report and recommendation. Ms. Morgan also seeks to strike the affidavit of agent Collazo because it purports to interject new facts not testified to at the hearing and thus violates her right of confrontation under the Sixth Amendment. Beyond these objections, Ms. Morgan urges that the facts were correctly determined by the undersigned and the report and recommendation should be affirmed.
Upon consideration, the government's motion for reconsideration (Doc. 162) is denied. Apart from the additional testimony set forth in agent Collazo's affidavit, the government's motion merely objects to the undersigned's conclusions and reargues its former positions and thus provides no cause for reconsideration. Further, I agree with the Defendant that the Collazo affidavit is troubling in that it is appears inconsistent with the witness's testimony at the hearing and in any event cannot be considered on this motion without doing harm to Morgan's Sixth Amendment rights. On the other hand, Defendant's motion to strike (Doc. 166) the government's pleading as inappropriate and untimely under Rule 59 is denied. While I believe that the magistrate judge has the inherent authority to reconsider an initial report and recommendation, see United States v. Coon, No. 10-CR-110A, 2011 WL 1871165, at *2 (W.D.N.Y. May 16, 2011), in the circumstances of this case, I believe the government's pleading is better construed as the government's objections to the report and recommendation. S ee United States v. Square, No. 1:10CR00492, 2011 WL 1871231, at *29 n. 1 (N. D. Ohio May 16, 2011). However it is read or construed, the government's pleading in response to the report and recommendation was timely as both Rule 59 and the report and recommendation provided the parties with fourteen days within which to object, not ten as urged by Defendant. In any event, as noted by the court in Square, given the government's timely objections to the undersigned's conclusions, the district judge will be called upon to make a de novo review of pertinent portions of the report and recommendation. Id. at *1. In accordance with Rule 59, the district judge may accept, reject, or modify the recommendation. If the court chooses, it may receive further testimony or resubmit the matter to the undersigned for the same. See Fed.R.Crim.P. 59(b)(3).
Done and Ordered in Tampa, Florida.