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United States v. McGill

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

September 29, 2014

UNITED STATES OF AMERICA,
v.
JOHN HAROLD McGILL, Defendant.

OPINION AND ORDER

WILLIAM S. DUFFEY, Jr., District Judge.

This matter is before the Court on Magistrate Judge Linda Walker's Report and Recommendation and Order Certifying Case Ready for Trial ("R&R") [15], which recommends denying Defendant's Motion to Dismiss Indictment [9].

I. BACKGROUND[1]

On May 6, 2014, a grand jury returned a one-count indictment (the "Indictment") against Defendant John Harold McGill ("Defendant"). The Indictment alleges:

From on or about March 1, 2014, until on or about March 2, 2014, in the Northern District of Georgia, the defendant, John McGill, using a facility and means of interstate commerce, knowingly attempted to persuade, induce, and entice an individual who had not attained the age of 18 years to engage in sexual activity for which the defendant could be charged with a criminal offense, in violation of Title 18, United States Code, Section 2422(b).

On May 29, 2014, Defendant filed his Motion to Dismiss Indictment ("Motion") [9]. Defendant asserts that the evidence is not sufficient to support that he violated 18 U.S.C. § 2422(b) because the Government's evidence fails to establish: that Defendant attempted to cause the minor's assent, [2] that Defendant took a substantial step toward completing the crime, [3] or that Defendant used a facility or instrumentality of interstate commerce during commission of the offense. (Mot. at 3-4).

On June 20, 2014 the Government filed its Response [12], asserting that the Indictment is legally sufficient on its face, and that the Motion constitutes an improper demand for a pre-trial review of the evidence. (Gov't Resp. at 5-7).

On July 18, 2014, Defendant filed his Reply [14] asserting, for the first time, that the Indictment should be dismissed because Defendant was entrapped by the Government. (Reply at 1).

On August 25, 2014, Magistrate Judge Linda T. Walker issued her R&R, recommending that Defendant's Motion be denied.

There are no objections to the R&R.

II. DISCUSSION

A. Legal Standard Review of an R&R

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); Williams v. Wainwright , 681 F.2d 732, 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). 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 quotation marks omitted). With respect to those findings and recommendations ...


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