United States District Court, N.D. Georgia, Atlanta Division
Timothy C. Batten, Sr., United States District Judge
case comes before the Court on Magistrate Judge Catherine M.
Salinas's report and recommendation  (the
“R&R”), which recommends that Defendant
Antonio Ferrell's motion  to dismiss the indictment
be denied. Ferrell filed objections  to the R&R but
does not dispute the magistrate judge's statement of the
Legal Standard for Review of a Magistrate Judge's
district judge has a duty to conduct a “careful and
complete” review of a magistrate judge's R&R.
Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir.
1982) (per curiam) (quoting Nettles v. Wainwright,
677 F.2d 404, 408 (5th Cir. Unit B 1982)). This review may
take different forms, however, depending on whether there are
objections to the R&R. The district judge must
“make a de novo determination of those portions of the
[R&R] to which objection is made.” 28 U.S.C. §
636(b)(1)(C). In contrast, those portions of the R&R to
which no objection is made need only be reviewed for
“clear error.” Macort v. Prem, Inc., 208
F. App'x 781, 784 (11th Cir. 2006) (per curiam) (quoting
Diamond v. Colonial Life & Accident Ins., 416
F.3d 310, 315 (4th Cir. 2005)).
filing objections must specifically identify those findings
objected to. Frivolous, conclusive or general objections need
not be considered by the district court.”
Nettles, 677 F.2d at 410 n.8. “This rule
facilitates the opportunity for district judges to spend more
time on matters actually contested and produces a result
compatible with the purposes of the Magistrates Act.”
Id. at 410.
district judge also has discretion to decline to consider
arguments that were not raised before the magistrate judge.
Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir.
2009). Indeed, a contrary rule “would effectively
nullify the magistrate judge's consideration of the
matter and would not help to relieve the workload of the
district court.” Id. (quoting United
States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000)).
conducting a complete and careful review of the R&R, the
district judge “may accept, reject, or modify”
the magistrate judge's findings and recommendations. 28
U.S.C. § 636(b)(1)(C); Williams, 681 F.2d at
732. The district judge “may also receive further
evidence or recommit the matter to the magistrate judge with
instructions.” 28 U.S.C. § 636(b)(1)(C).
Ferrell does not object to the magistrate judge's factual
statement, and finding no clear error, the Court adopts the
facts as set forth in the R&R .
R&R provides more detail regarding the facts of the case,
which arise from Ferrell's federal prosecution for being
a felon in possession of a firearm. Ferrell has already been
convicted of the same offense in Fulton County Superior
Court. He argues now that the federal indictment should be
dismissed pursuant to the Double Jeopardy Clause of the Fifth
Amendment, which generally prohibits successive prosecutions
for the same crimes based on the same conduct. Magistrate
Judge Salinas recommends denying the motion to dismiss
because the “dual sovereign” exception to the
Double Jeopardy Clause applies and because Ferrell failed to
demonstrate that his Georgia conviction was the product of a
sham prosecution by the federal government. The latter
grounds, in some circuits, would be an exception to the dual
makes general objections to the following recommendations of
the magistrate judge: (1) not to reconsider the applicability
of the “dual sovereign” doctrine in light of
recent Supreme Court precedent, (2) not to apply the
“sham prosecution” exception to the dual
sovereign doctrine, and (3) that an evidentiary hearing was
than specifically identify how the magistrate judge's
conclusions of law were in error, Ferrell generally objects
and refers to the memorandum accompanying his motion to
dismiss. This alone is grounds for overruling his objections.
Nettles, 677 F.2d at 410 n.8 (“Parties filing
objections must specifically identify those findings objected
to. . . . general objections need not be considered by the
district court.”). Even so, if the Court reviewed de
novo the magistrate judge's recommendations in light of
the arguments as first presented by Ferrell the outcome would
be no different.
Ferrell's contention that the dual sovereign doctrine
should not apply in light of the Supreme Court's recent
decision in Puerto Rico v. Sanchez Valle, 136 S.Ct.
1863 (2016), is frivolous. He asks the Court to ignore-or
worse, overturn-binding precedent. This it cannot do.
Valle does not justify his request. In that case, the
Supreme Court held that because the prosecutorial power of
Puerto Rico, a U.S. territory, was derived from the same
“ultimate source” as that of the federal
government, the defendant could not be tried by both Puerto
Rico and the United States for the same conduct. Id.
at 1867-68 ...