United States District Court, N.D. Georgia, Atlanta Division
H. COHEN UNITED STATES DISTRICT JUDGE
action comes before the Court on the Final Report and
Recommendation ("R&R") of Magistrate Judge
Linda T. Walker [Doc. 24" recommending that
Defendant's Motion to Suppress [Doc. 14] and Motion to
Suppress Statements [Doc. 15] be denied. The Order for
Service of the R&R [Doc. 25] provided notice that, in
accordance with 28 U.S.C. § 636(b)(1) (2012), the
parties were authorized to file objections within fourteen
(14) days of the receipt of that Order. Defendant filed his
objections to the R&R [Doe. 26] ("Def.'s
Objs.") on August 18, 2016.
reviewing a Magistrate Judge's R&R, the district
court "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). "Parties filing objections to a
magistrate's report and recommendation must specifically
identify those findings objected to. Frivolous, conclusive,
or general objections need not be considered by the district
court." United States v. Schultz, 565 F.3d
1353, 1361 (11th Cir. 2009) (quoting Marsden v. Moore. 847
F.2d 1536, 1548 (11th Cir. 1988)). If there are no specific
objections to factual findings made by the Magistrate Judge,
there is no requirement that those findings be reviewed
de novo. Garvev v. Vaughn. 993 F.2d 776, 779 n.9
(11th Cir. 1993). Absent objection, the district court judge
"may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate [judge],
" 28 U.S.C. § 636(b)(1), and may accept the or
recommendation if it is not clearly erroneous of contrary to
the law. Fed. R. Crim. P. 59(a). In accordance with 28 U.S.C.
§ 636(b)(1) and Rule 59 of the Federal Rules of Criminal
Procedure, the Court has conducted a de novo review
of those portions of the R&R to which Defendant objects
and has reviewed the remainder of the R&R for plain
error. See United States V. Slav. 714 F.2d 1093, 1095 (11th
bulk of Defendant's objections call into question Judge
Walker's findings that favored the credibility of FBI
Special Agent Scott Warren over that of Defendant with
respect to their testimony at the evidentiary hearing held on
February 23, 2017. Def's Objs. at 1-5. According to
Defendant, Judge Walker's "arbitrary and capricious
preference of Agent Warren's credibility over
Defendant's credibility requires another evidentiary
hearing." Id. at 4.
district court is not required to rehear witness testimony
when accepting a magistrate judge's credibility findings.
United States v. Raddatz, 447 U.S. 667, 680-81 (1980); United
States v. Thompson, 422 F.3d 1285, 1297 (11th Cir. 2008).
"In evaluating the factual version of events between the
law enforcement officer[ ] and [the defendant], we should
defer to the magistrate judge's determination unless
h[er] understanding of the facts appears to be
'unbelievable.'" United States v.
Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (citing
United States v. Rivera, 775 F.2d 1559, 1561 (11th Cir.
review of the transcript of the evidentiary hearing and the
R&R, the Court finds that Judge Walker did not determine
credibility solely on the status of the witnesses; moreover,
the reasons given by Judge Walker for crediting the
agent's testimony and finding Defendant's to be less
than credible and inconsistent were reasonable. R&R at
9-11, 18-20. See United States v. Emanuel, 440 F.App'x
881, 883 (11th Cir. 2011) (according "substantial
deference" to the credibility determinations made by the
magistrate judge where the defendant "failed to show
that the magistrate [judge]'s understanding of the facts
is not plausible or permissible . . . .");
Ramirez-Chilel, 289 F.3d at 750 (holding that district judge
appropriately relied upon magistrate judge's credibility
determinations where the magistrate judge "did not base
his credibility determination solely on the 'status'
of the witnesses, but rather weighed the testimony of all the
witnesses, taking into account the interests of the
witnesses, the consistencies or inconsistencies in their
testimonies, and their demeanor on the stand."). This is
not one of those "rare cases" in which the
transcript of the evidentiary hearing presents an articulate
basis for rejecting the magistrate judge's resolution of
credibility. United States v. Marshalll 609 F.2d
152, 155 (5th Cir. 1980); see also United States v.
Cofield, 272 F.3d 1303, 1306 (11th Cir. 2001)
("This is not the 'rare case' discussed in
Marshall, as the transcript here provides no basis to reject
the magistrate judge's credibility findings.").
Having concluded that Judge Walker's reasons for finding
Defendant's testimony was less than credible were
reasonable and justified, and that Defendant presents no
articulate basis for rejecting that credibility
determination, the Court also rejects Defendant's request
for a second evidentiary hearing.
Defendant maintains his position that he was in custody at
the time of his interrogation, and that the location of
Defendant at his home "did not neutralize the coercive
environment of this interrogation" for Miranda purposes.
R&R at 5-6. "A person taken into custody must be
advised of his right to remain silent and his right to
counsel prior to any interrogation." United States v.
Muegge, 225 F.3d j 1267, 1269-70
(11th Cir. 2000). In this case, the evidence shows that
Defendant was interviewed in his home; agreed to go outside
on his deck to be interviewed; was told he was not under
arrest, did not have to answer questions, and could stop
answering questions at any time; never attempted to leave or
refuse to answer questions; never asked to speak with an
attorney; and was not arrested at any time during or
immediately after the interview. The tone of the interview
was conversational and not accusatory and the entire
interview lasted only forty-five minutes. On these facts,
Judge Walker concluded that Defendant was not in custody when
he made statements to agents so that Miranda warnings were
not required. R&R at 17-27. This Court, after reviewing
the record de novo, finds that the Magistrate
Judge's conclusions are well-supported and agrees that,
under the totality of the circumstances, a reasonable man in
Defendant's position would not have believed that his
freedom of movement was being restricted or that he was
unable to leave. United States v. Phillips, 812 F.2d 1355,
1360 (11th Cir. 1987). Defendant was not in custody when he
made statements to iaw enforcement officers.
Defendant objects to the Magistrate Judge's holding that
no second search warrant to search the contents of his
computer was required even though a search warrant was issued
for the seizure of Defendant's computer. Def.'s Objs.
at 7-8. Defendant previously acknowledged in briefing before
the Magistrate Judge that his position was contrary to Rule
41(e)(2)(B) of the Federal Rules of Criminal Procedure, which
specifically authorizes a later off-site search of items
seized pursuant to a lawful warrant seeking electronically
stored information. "Federal courts have generally not
required a second warrant to search a properly seized
computer where the evidence obtained in the search did not
exceed the probable cause articulated in the original
warrant." United States v. Ilonzo, No.
1:12-CR-276-SCJ-GGB, 2015 WL 5827598, at *19 (N.D.Ga. Oct. 6,
2015) (quotations and citations omitted). Defendant has cited
to no authority which would compel this Court not to apply
the general rule. This Court agrees with Judge Walker's
finding that Defendant's computer was seized and searched
pursuant to a valid warrant.
after a de novo review of those portions of the
R&R to which Defendant objects, the Court
OVERRULES his objections [Doc. 26]] Finding
no clear error in the remaining portions of the R&R, the
Court ADOPTS the R&R [Doc. 24] as the
Opinion and Order of the Court.
hereby ORDERED that Defendant's Motion
to Suppress [Doc. 14] and Motion to Suppress Statements [Doc.
15] are DENIED.
further ORDERED that the time between the
date the Magistrate Judge certified Defendant ready for trial
on August 4, 2017, and the issuance of this Order, shall be
excluded in calculating the date on which the trial of this
case must commence under the Speedy Trial Act because the
Court finds that the delay is for good cause, and the
interests of justice in considering Defendant's
objections to the Report and Recommendation outweigh the
right of the public and the right of the defendant to a
speedy trial, pursuant to 18 U.S.C. § 3161, et
IS SO ORDERED