United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Defendant Demarco Doxie's ("Doxie" or "Defendant") Objections to the Magistrate Judge's Report and Recommendation ("Objections")  regarding Defendant's Perfected Motion to Suppress Evidence (the "Suppression Motion") . Magistrate Judge Brill's Final Report and Recommendation ("R&R")  was entered on June 18, 2014.
Doxie was employed by Ennis Traffic Safety Solutions ("Ennis"), a manufacturer of road marking and pavement surface treatments. Doxie was a manager at the company. Defendant is charged in a Second Superseding Indictment returned on March 4, 2014, with: one (1) count of mail fraud in violation of 18 U.S.C. § 1341, and twenty (20) counts of wire fraud in violation of 18 U.S.C. § 1343. Defendant is alleged to have engaged in a scheme to defraud during the period January 2007 through August 2011, while employed by Ennis (the "Second Superseding Indictment"). Count One of the Second Superseding Indictment alleges that Doxie fabricated invoices from Outlook Environmental & Safety Solutions ("Outlook") for submission to, and payment by, Ennis. Doxie was the owner and only employee of Outlook. In Counts Two through Twenty-one, Doxie is alleged to have charged various personal expenses on his company issued American Express and JP Morgan Chase credit cards and that these expenses were submitted to and paid by Ennis. The charges are alleged not to have been authorized. It also is alleged that Doxie used his company provided American Express card to pay Outlook for services that were not received by Ennis.
The charges against Doxie were brought by the Government after it was informed of the results of an internal investigation conducted by Ennis. The investigation was conducted with the assistance of Kenneth Broodo ("Broodo"), an attorney who Ennis hired to investigate the conduct in which Ennis suspected that Doxie had engaged. Grant Thornton, an accounting firm in Atlanta, also was hired to assist in the investigation including retrieving and reviewing information stored in a laptop and iPhone that Ennis issued to Doxie for his use. Grant Thornton also was tasked with reviewing Ennis's hard drives and backup tapes for information relating to the conduct for which Doxie was being investigated by the company (the "Company Computer Information"). Doxie hired Alan Kan. ("Kan"), a lawyer in Atlanta, to represent him in Ennis's investigation.
Doxie filed his Suppression Motion to exclude certain statements made during, or statements attributed to Doxie, in connection with communications between Broodo and Kan.during the course of Ennis's internal investigation or which Kan.provided to Broodo in response to his request for information from Doxie (the "Attorney and Doxie Statements"). Defendant argues that the Attorney and Doxie Statements are required by Rule 408 of the Federal Rules of Evidence to be excluded at trial because the communications are inadmissible settlement discussions.
Doxie also seeks to suppress information retrieved from Doxie's company-issued laptop and iPhone devices, and which was provided to law enforcement (the "Device Information"). Defendant contends the Device Information is required to be suppressed because the Fourth Amendment required a warrant be obtained to access the Device Information and the Device Information was obtained without a warrant being issued. Doxie contends that even though Ennis and Broodo were private parties when the Device Information was obtained, they were acting as an agent of the Government, thus implicating Doxie's Fourth Amendment rights. Defendant contends that introduction of them at trial would violate Defendant's rights under the Fourth Amendment. The absence of a warrant under the circumstances here, Defendant argues, requires the Device Information be suppressed.
The Magistrate Judge, in her R&R, determined that the statements made in communications between Broodo and Kan, and statements attributed to Doxie which were offered in response to requests made by Broodo to explain Doxie's conduct, are required to be excluded from trial by Rule 408 of the Federal Rules of Evidence because they were made during settlement negotiations. She also found that the Device Information obtained by Grant Thornton in connection with the investigation was not collected for law enforcement and thus the information was not obtained by Ennis acting as an agent of the Government. The Magistrate Judge found that the Device Information was not obtained in violation of Doxie's constitutional rights including those under the Fourth Amendment. She recommended the motion to suppress the Device Information be denied.
Objections were not filed to the Magistrate Judge's finding and recommendation that Rule 408 of the Federal Rules of Evidence required that the Statements be excluded. Doxie filed his objections to the Magistrate Judge's finding and recommendation that the Device Information is not required to be suppressed because it was obtained by a private person who was not acting as an agent of the Government.
II. STANDARD OF REVIEW
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Crim. P. 59; Williams v. Wainwright , 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge "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). This requires that the district judge "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ. of Ga. , 896 F.2d 507, 512 (11th Cir. 1990) (internal citations omitted). With respect to those findings and recommendations to which a party has not asserted objections, the Court must conduct a plain error review of the record. United States v. Slay , 714 F.2d 1093, 1095 (11th Cir. 1983).
A. Statements Made In and the Result of the Broodo and Kan.communications
The parties do not object to the Magistrate Judge's finding and recommendation that the Attorney and Doxie Statements be suppressed and excluded from admission at trial pursuant to Rule 408 of the Federal Rules of Evidence. Having reviewed the finding and recommendation, and finding no plain error in them, the Court concludes that the Attorney and Doxie Statements are not ...