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United States v. Acosta

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

January 5, 2018

UNITED STATES OF AMERICA,
v.
BRIAN HERNANDEZ ACOSTA, Defendant.

          ORDER

         ORDER This case is before the Court on the Motion to Suppress Evidence filed by Defendant Brian Hernandez Acosta ("Defendant") [50], on Defendant's Motion to Suppress Statements [51], and on the Non-Final Report and Recommendation of United States Magistrate Judge Walter E. Johnson [138].

         I. standard of Review

         28 U.S.C. § 636(b)(1) requires that in reviewing a magistrate judge's report and recommendation, 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). The Court therefore must conduct a de novo review if a party files "a proper, specific objection" to a factual finding contained in the report and recommendation. Macort v. Prem, Inc., 208 Fed.Appx. 781, 784 (11th Cir. 2006); Jeffrey S. by Ernest S. v. State Bd. of Educ, 896 F.2d 507, 513 (11th Cir. 1990); United States v. Gaddy, 894 F.2d 1307, 1315 (11th Cir. 1990); LoConte v. Dugger, 847 F.2d 745, 750 (11th Cir. 1988). If no party files a timely objection to a factual finding in the report and recommendation, the Court reviews that finding for clear error. Macort, 208 Fed.Appx. at 784. Legal conclusions, of course, are subject to de novo review even if no party specifically objects. United States v. Keel, 164 Fed.Appx. 958, 961 (11th Cir. 2006); United States v. Warren, 687 F.2d 347, 347 (11th Cir. 1982).

         II. Background

         A. Procedural Background

         On April 11, 2017, a federal grand jury sitting in the Northern District of Georgia returned an indictment against Defendant and two co-defendants, Nilageo Alvarez Acosta ("Defendant Alvarez Acosta"), and Jaime Adam Riano ("Mr. Riano"). (Indictment (Docket Entry No. 1).) Count one of the indictment charged Defendant and his co-defendants with conspiracy to commit sex trafficking of a minor, in violation of 18 U.S.C. § 1594(c). (Id. at 1-8.) Counts two, four, and five charged Defendant with sex trafficking of various minors, in violation of 18 U.S.C. § 1591. (Id. at 8-11.) Counts six and eight charged Defendant and his co-defendants with sex trafficking of minors, in violation of 18 U.S.C. § 1591. (Id.; at 11, 12-13.) Count three charged Defendant with transportation of a minor for prostitution, in violation of 18 U.S.C. § 2423(a). (Id. at 9.) Count seven charged Defendant and Defendant Alvarez Acosta with transportation of a minor for prosecution, in violation of 18 U.S.C. § 2423(a). (Id. at 12.) The indictment also contained a forfeiture provision. (Id. at 13-15.)

         On May 13, 2017, Defendant filed his Motion to Suppress Evidence and his Motion to Suppress Statements. (Mot. Suppress Evidence (Docket Entry No. 50); Mot. Suppress Statements (Docket Entry No. 51).) On September 13, 2017, Judge Johnson conducted an evidentiary hearing with respect to those Motions. (Minute Entry (Docket Entry No. 77).)

         On December 5, 2017, the grand jury issued a First Superseding Indictment against Defendant and his co-defendants, adding two defendants, Anthony Joseph Lawhon ("Defendant Lawhon") and Brandi Rice Stumpe ("Defendant Stumpe"), dropping Mr. Riano as a defendant, and bringing more charges. (First Superseding Indictment (Docket Entry No. 102).) Count one of the First Superseding Indictment charged Defendant and his co-defendants with conspiracy to commit sex trafficking of a minor, in violation of 18 U.S.C. § 1594(c). (Id. at 1-9.) Counts two, four, and five charged Defendant with sex trafficking by force, fraud, and coercion and sex trafficking of a minor, in violation of 18 U.S.C. § 1591. (Id. at 10-13.) Counts six, eight, and nine charged Defendant and his co-defendants with sex trafficking by force, fraud, and coercion and sex trafficking of a minor, in violation of 18 U.S.C. § 1591. (Id. at 13-16.) Count three charged Defendant with transportation of a minor for prostitution, in violation of 18 U.S.C. § 2423(a). (Id. at 11.) Count seven charged Defendant and Defendant Alvarez Acosta with transportation of a minor for prosecution, in violation of 18 U.S.C. § 2423(a). (Id. at 14.) Count ten charged Defendant and Defendant Lawhon with production of child pornography, in violation of 18 U.S.C. § 2251(a). (Id. at 17.) Count eleven charged Defendant with possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). (Id. at 17-18.) Count twelve charged Defendant with engaging in a child exploitation enterprise, in violation of 18 U.S.C. § 2252A(g). (Id. at 18-19.) Count thirteen charged Defendant with obstructing enforcement of 18 U.S.C. § 1591, in violation of 18 U.S.C. § 1591(d). (Id. at 19-20.) Count fifteen charged Defendant, Defendant Lawhon, and Defendant Stumpe with distributing a controlled substance to a person under twenty-one years of age, in violation of 21 U.S.C. § 859(a). (Id. at 21.) The first superseding indictment also contained a forfeiture provision. (Id. at 22-25.)

         On December 19, 2017, Judge Johnson issued his Non-Final Report and Recommendation. (Non-Final Report & Recommendation (Docket Entry No. 138).) Judge Johnson recommended that the Court deny the Motion to Suppress Evidence and the Motion to Suppress Statements. (Id.)

         As of the date of this Order, the Clerk's docket indicates that Defendant has not filed Objections to the Non-Final Report and Recommendation. (See generally Docket.) The time period for filing Objections has expired, [1] and the Court finds that the matter is ripe for resolution.

         B. Factual Background

         On December 19, 2016, Detective Aberhoff of the Miami Dade Police Department contacted the Dalton Police Department concerning A.M., a sixteen-year-old girl who had been missing for approximately three months. (Tr. (Docket Entry No. 82) at 8, 47.)[2] Detective Aberhoff spoke with Detective Aaron Simpson of the Dalton Police Department. (Id. at 6-7.) Detective Simpson is also assigned to the Federal Bureau of Investigation's ("FBI") Conasauga Safe Streets Force. (Id.) Detective Aberhoff conveyed to Detective Simpson that, during the course of her search for A.M., she detected activity on Facebook by A.M., under an alias, and had served subpoenas on Facebook to attempt to determine A.M.'s location. (Id. at 8-9.) A review of A.M.'s Facebook activity log showed IP addresses associated with her Facebook page. (Id. at 9.) A review of the IP addresses pointed to a cell phone registered to T-Mobile, which detectives then subpoenaed. (Id.) A review of T-Mobile's subpoena responses indicated that Defendant was the account holder for the device that A.M. had used to log into Facebook. (Id. at 9, 77.)

         Detective Aberhoff gave Detective Simpson the address linked to Defendant's T-Mobile account in Dalton, as well as two other Dalton-area addresses, and asked him to check the addresses to see if he could locate A.M. (Tr. at 9-10.)[3]Detective Simpson looked up Defendant in the Dalton Police Department's report system to corroborate the addresses, examined Defendant's Facebook page to identify him, obtained a copy of Defendant's driver's license, and obtained a photograph of A.M. from Detective Aberhoff. (Id. at 10.)

         Detective Simpson, accompanied by Detective Tucker, first traveled to 2410 Scott Drive, and arrived there at approximately 2:00 p.m. (Tr. at 10.) The detectives encountered a woman in a basement-type apartment, and they showed her a picture of Defendant. (Id. at 11.) The woman recognized Defendant, but reported that Defendant was not there and did not live there. (Id.)

         The detectives then traveled to 496 Horsehoe Way, which was an apartment complex called Dawnville Meadows. (Tr. at 11.) The detectives made contact with the apartment complex manager, who confirmed that Defendant lived there in unit J-204 and described his vehicle. (Id. at 11, 64.) The detectives also showed A.M.'s photograph to a maintenance worker for the complex, who remembered that he had seen her crying behind a dumpster near Defendant's apartment only a couple of weeks earlier. (Id.) No one answered when the detectives knocked on the door of unit J-204. (Id. at 12.)

         While at the complex, Defendant Simpson received a telephone call from another Dalton Police Department detective, who stated that Defendant had called the police department wanting to know why the police were looking for him. (Tr. at 12.) Detective Simpson asked the other detective to obtain contact information for Defendant and said that Detective Simpson would call him back. (Id.) When Detective Simpson returned to the station, he found a note from the other detective listing three callback telephone numbers ...


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