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United States v. Ferrell

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

December 6, 2017

UNITED STATES OF AMERICA
v.
ANTONIO FERRELL, Defendant.

          ORDER

          Timothy C. Batten, Sr., United States District Judge

         This case comes before the Court on Magistrate Judge Catherine M. Salinas's report and recommendation [21] (the “R&R”), which recommends that Defendant Antonio Ferrell's motion [15] to dismiss the indictment be denied. Ferrell filed objections [23] to the R&R but does not dispute the magistrate judge's statement of the facts.

         I. Legal Standard for Review of a Magistrate Judge's R&R

         A 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)).[1]

         “Parties 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.

         The 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)).

         After 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).

         III. Discussion

         Because 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 [21].

         The 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 sovereign doctrine.

         Ferrell 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 not required.

         Rather 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.

         First, 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.

         Sanchez 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 ...


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