United States District Court, N.D. Georgia, Atlanta Division
HONORABLE STEVE C. JONES UNITED STATES DISTRICT JUDGE
matter appears before the Court for consideration of the
magistrate judge's September 5, 2017, Non-Final Report
and Recommendation (“R&R”) (Doc. No. ),
in which The Honorable Catherine M. Salinas, United States
Magistrate Judge, recommended that Defendant's Motion to
Compel Selective Prosecution Discovery (Doc. No. );
Motion to Dismiss the Indictment with Prejudice for Selective
Prosecution (Doc. No. ); and Motion to Quash Count One as
Fatally Duplicitous or to Require Forced Election (Doc. No.
) be denied.
Court incorporates by reference the facts and legal standards
stated in the R&R. As stated in the R&R (Doc. No.
, pp. 2-3), on February 8, 2017, a grand jury in the
Northern District of Georgia returned a one-count indictment
against Defendant Ali-Haider Khan for violating 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(c) by possessing with
the intent to distribute synthetic cannabinoids. [Doc. 1 at
1-2]. Specifically, the indictment alleges:
On or about November 9, 2015, in the Northern District of
Georgia, the defendant, ALI-HAIDER KHAN, did knowingly and
intentionally possess with intent to distribute a controlled
substance, said act involving a mixture and substance
(1) a detectable amount of “AB-FUBINACA, ”
zole-3-carboxamide, a Schedule I controlled substance;
(2) a mixture and substance containing a detectable amount of
“X L R11, ” [1-(5-fluoropentyl)-1H-indol-3-yl]
(2, 2, 3, 3-tetramethylcyclopropyl) methanone, a Schedule I
controlled substance; and
(3) a mixture and substance containing a detectable amount of
a Schedule I controlled substance; in violation of Title 21,
United States Code, Sections 841(a)(1) and 841(b)(1)(C).
September 19, 2017, Defendant Khan filed objections to the
R&R. Doc. No. [53');">53');">53');">53]. Defendant Khan “objects
generally to the factual findings, analysis, and conclusions
that are contrary to that presented by the [three] motion(s),
and corresponding reply briefs. Doc. No. [53');">53');">53');">53], p. 1 (citing
Doc Nos. , , , , and ). Defendant Khan
objects with particularity to the following issues: (1)
Duplicity: the enumeration of three different controlled
substances does not charge different ways in which 21 U.S.C.
§ 841(a)(1) (2012) has allegedly been violated; and (2)
Remedy: count one should be quashed, or this Court should
force the government to elect one of the three controlled
substances alleged. Doc. No. [53');">53');">53');">53], pp. 2, 4.
such objections are filed (as to dispositive motions), the
Court must “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); Fed. R. Crim. P. 59(b)(3). After conducting
this review, the Court “may accept, reject, or modify
in whole or in part, the findings or recommendations made by
the magistrate judge.” Id. Additionally, the
Court may “receive further evidence or recommit the
matter to the magistrate judge with instructions.”
Id. For non-dispositive matters, such as the
pending discovery motion, “[t]he district judge must
consider timely objections and modify or set aside any part
of the order that is contrary to law or clearly
erroneous.” Fed. R. Crim. P. 59(a).
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.”
Marsden v. Moore, 53');">53');">53');">536');">847 F.2d 153');">53');">53');">536, 1548 (11th Cir.
regard, the Court has not considered Defendant's general
objections to “the factual findings, analysis, and
conclusions [of the magistrate] that are contrary to that
presented by [his] motions” at Doc. Nos. , ,
and , and his corresponding reply briefs at Doc. Nos.
, . Doc. No. [53');">53');">53');">53], p. 1. Furthermore, in reviewing
the portions of the R&R not subject to a particularized
objections, the Court finds no clear error. See United
States v. GoveaVazquez, 962 F.Supp.2d 1325, 1326-27
(N.D.Ga. 2013) (“Where no objection to the R&R is
made, it need only be reviewed for clear error.”)
(internal quotations omitted) (emphasis omitted); see
also United States v. Slay, 714 F.2d 1093, 1095 (11th
Cir. 1983) (“The failure to object to the
magistrate's findings of fact prohibits an attack on
appeal of the factual findings adopted by the district court
except on grounds of plain error or manifest
injustice.”). More, specifically, as to the
Defendant's non-dispositive motion to compel selective
prosecution discovery for which Defendant has only raised a
general objection to the R&R, the Court accepts the
magistrate's recommendation as the Court does not find
that the magistrate's order is contrary to law or clearly
erroneous. As to the Defendant's dispositive-motion to
dismiss indictment with prejudice for selective prosecution
(Doc. No. ) to which Defendant has only raised a general
objection to the R&R, the Court finds no clear error.
Court will now consider Defendant's particularized
objections as to the magistrate's recommendation for the
motion to quash be denied. Doc. No. [53');">53');">53');">53]. Defendant argues
that “because count one requires proof of dissimilar
facts (knowing possession of three separate controlled
substances), and alleges only one way [that] § 841(a)(1)
was violated (possession with intent to distribute), the
count is duplicitous under
Bins.” Doc. No. [53');">53');">53');">53], p. 4. According to
Defendant, under Eleventh Circuit precedent, the
knowledge-element-modification makes count one duplicitous
because, “it is well settled that the test for
determining whether several offenses are involved is whether
identical evidence will support both of them, and if any
dissimilar facts must be proved, there is more than one
offense.” Doc. No. [53');">53');">53');">53], p. 3 (citing Bins v.
United States, 331 F.2d 390, 393 (5th Cir. 1964) and
Blockburger v. United States, 284 U.S. 299 (1932)
count in an indictment is duplicitous if it charges two or
more ‘separate and distinct' offenses.”
United States v. Schlei, 122 F.3d 944, 977 (11th
Cir. 1997) (citing United States v. Burton, 871 F.2d
1566, 1573 (11th Cir.1989)). “Under this analysis, the
key issue to be determined is what conduct constitutes a
single offense.” Id.
review of Defendant's arguments and citation of
authority, the Court is not convinced that the indictment is
duplicitous, as opposed to merely specifying how the
violation of law is alleged to have been committed, as
asserted by the Government and Magistrate. Doc. No. ...