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United States v. McCullough

United States District Court, N.D. Georgia, Atlanta Division

August 13, 2014

UNITED STATES OF AMERICA,
v.
JOSHUA McCULLOUGH, et al., Defendants.

ORDER

JULIE E. CARNES, Circuit District Judge.

This case is before the Court on the Magistrate Judge's Report and Recommendations [310, 333, 489, 493, 495, 509, 618] recommending denying defendants Joshua McCullough and James McKenzie's Motions to Dismiss the Indictment [270, 306], denying McKenzie's Motions to Suppress Evidence [112, 294, 307, 308, 315, 316], denying the Whortons' Motions to Suppress Evidence [125, 163], denying the Autrys' Motions to Suppress Evidence [143, 200, 226, 227, 230, 247, 249], denying McCullough's Motions to Suppress Evidence [153, 154, 155], denying defendant Holly Autry's Motion to Suppress Statements [199], denying defendant Sandra Whorton's Motion to Suppress Evidence Seized During the Searches of 1396 Commerce Drive, Suites A and B [183], denying defendant Holly Autry's Motions to Suppress Statements [142, 199], denying defendant Joshua McCullough's Motion to Suppress Evidence [156], and denying Bunch's Motions to Suppress the search of 436 Hood Road, as adopted by Ira Butler [146, 196], Bunch's Motion to Suppress the search of 1850 Flat Rock Road [147], Bunch's Motion to Suppress Statements [148], Bunch's Supplemental Motion to Suppress Evidence and Statements [205], Butler's Motion to Suppress Evidence [130], Butler's Motion to Suppress Evidence from the December 8, 2010 search of 436 Hood Road [213], denying James McKenzie's Motion to Suppress Identification Testimony [288], granting Holly Autry's Motions to Supplement the Record, [361, 382], and denying the Motion to Reconsider the magistrate judge's previous R&R [361, 382].

On August 19, 2011, defendant McCullough filed Objections [318], and on August 22, 2011 defendant McKenzie filed Objections [325] to the Report and Recommendation [310]. On September 12, 2011, Sandra Whorton filed Objections [347] to the Report and Recommendation [333]. On September 14, 2011, Jimmy Ray Whorton filed Objections [348] to the Report and Recommendation [333]. On September 29, 2011, Joshua McCullough filed Objections [358] to the Report and Recommendation [333]. On September 30, 2011, Karry Autry filed Objections [359] to the Report and Recommendation [333]. On September 30, 2011, Holly Autry filed Objections [360] to the Report and Recommendation [333]. On September 30, 2011, James McKenzie filed Objections [362] to the Report and Recommendation [333]. On September 30, 2011, Paul Bunch filed Objections [363, 364] to the Report and Recommendation [333]. On September 28, 2012, Sandra Whorton filed Objections [491] to the report and recommendation [489]. On October 23, 2012, Joshua McCullough filed Objections [498] to the Report and Recommendation [493]. On February 19, 2013, defendant Bunch filed Objections [532] to the Report and Recommendation [509]. On October 16, 2013, defendant Butler filed Objections [602] to the Report and Recommendation [509]. On February 11, 2014, defendants James McKenzie and Holly Autry filed Objections to the Report and Recommendation [618].[1] Finally, on April 2, 2014, defendant Bunch filed a motion to adopt a co-defendant's objections [666], which this Court now GRANTS.

The Court has reviewed the Report and Recommendations [310, 333, 489, 495, 509] and finds the magistrate judge's conclusions to be well-founded. As to one matter-the request by certain defendants for a Franks hearing as to the search warrant for 166 Alexander Drive-in order to ensure that the record is complete, the Court will request that the magistrate judge conduct a hearing on that matter. Otherwise, all other objections are overruled and the R&Rs are adopted, as written.

IT IS HEREBY ORDERED that the Court ADOPTS the Magistrate Judge's Report and Recommendations [310] DENYING the motions of defendants McCullough and McKenzie to Dismiss the Indictment [270, 306].[2] The Court ADOPTS his Report and Recommendation [333] as to its recommendation of the denial of the motions for suppression presented therein, and the grounds for denial of those motions, except that the Court directs that a Franks hearing be held as to all defendants who requested such a hearing as to the warrant affidavit relating to 166 Alexander Drive. ( See R&R [333] at 59-60). The Court ADOPTS the magistrate judge's Report and Recommendation [493] recommending the denial of defendant Joshua McCullough's motion to suppress evidence as to the search of 2220 Jodeco Road [155]. The Court ADOPTS the magistrate judge's Report and Recommendation [495] recommending the denial of defendant Holly Autry's motion to suppress statements [142, 199]. The Court ADOPTS the magistrate judge's Report and Recommendation recommending denial of motions to suppress filed by defendants Bunch and Butler [146, 196, 147, 148, 205, 130, 213]. The Court ADOPTS the magistrate judge's Report and Recommendation [618] recommending the denial of defendant McKenzie's motion to suppress identification testimony [288], the granting of defendant Holly Autry's motion to supplement the record [361, 382], the denial of the motions to reconsider the prior R&R [361, 382], except as to that part of the R&R rejecting defendants' request for Franks hearing as to the warrant affidavit relating to 166 Alexander Drive.

In short, the Court concurs as to all recommended rulings by the magistrate judge in his thorough and well-reasoned R&Rs, except that, to complete the record, the Court directs that a Franks hearing be held as to all defendants who requested such a hearing as to the warrant affidavit relating to 166 Alexander Drive.

It is further Ordered that defendant Karry Autry's Motion to Adopt the Co-Defendant, Holly Autry's, Objections to the Report and Recommendation [662]and defendant Paul Bunch's Motion to Adopt Co-Defendant's Objections to the Magistrate Judge's Non-Final Report and Recommendation [666] are GRANTED.

To render easier the Clerk's ability to properly record what motions are left to be determined after a Franks hearing, any defendant having requested such a hearing as to the warrant affidavit relating to 166 Alexander Drive should perfect that request by refiling this part of their previous motions as a separate document setting out this request. Defendants shall do by SEPTEMBER 5, 2014. In all other regards, however, the magistrate judge's denial of motions to suppress or rulings on other motions is ADOPTED.

SO ORDERED.


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