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United States v. Baldwin

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

July 12, 2018

UNITED STATES OF AMERICA,
v.
BRANDON JERALD BALDWIN, Defendant.

          ORDER

          ELEANOR L. ROSS UNITED STATES DISTRICT JUDGE

         This case is before the Court on Magistrate Judge Janet F. King's Report and Recommendation ("R&R") [Doc. 43] to deny Defendant's motions [Docs. 26, 27] as revised at oral argument [Docs. 41, 42] to dismiss the second superseding indictment [Doc. 34]. In the time period allotted for the parties to object to the R&R, Defendant, by and through counsel, filed objections [Doc. 49]. For the reasons set forth below, the Court overrules Defendant's objections and adopts the R&R.

         I. Procedural History

         On August 15, 2017 a grand jury returned a one-count indictment charging Defendant with a violation of 18 U.S.C. § 1038(a). [Doc. 1]. Defendant filed a motion to dismiss the indictment [Doc. 13], but withdrew the motion after the Government obtained a superseding indictment on November 20, 2017 [Doc. 19]. The superseding indictment retained the 18 U.S.C. § 1038(a) charge, but amended the original charging language. Defendant subsequently filed motions to dismiss the superseding indictment. [Docs. 26, 27]. Defendant contended that the superseding indictment was insufficient to satisfy the Fifth and Sixth Amendments because the indictment allegedly failed to apprise the Defendant of the charges against him and also failed to establish this Court's jurisdiction. [Doc. 26 at 6-9]. Defendant also contended that 18 U.S.C. § 1038(a), as applied to his case, was void for vagueness and that, in the alternative, the rule of lenity ought to be applied to his case. [Doc. 27 at 3, 6].

         During disputes over the motions to dismiss, the Government conceded that the superseding indictment did not sufficiently track the language of 18 U.S.C. § 1038(a) and the Government notified the Magistrate Court that they intended to obtain a second superseding indictment. [Doc. 30 at 11, n.3]. The Magistrate Court, in agreement with the Defendant, advised both Defendant and the Government that the second superseding indictment also ought to include which subsection(s) the Government would rely upon in the predicate offense to 18 U.S.C. § 1038(a), 18 U.S.C. § 844(h). [Doc. 43 at 3, n.l].

         On April 17, 2018, a grand jury returned a second superseding indictment charging the Defendant with a violation of 18 U.S.C. § 1038(a). [Doc. 34]. After hearing oral argument on April 27, 2018, at which Defendant revised his arguments in support of his motions to dismiss [Docs. 41, 42], the Magistrate Court filed an R&R that recommends denying Defendant's motions to dismiss as revised at oral argument [Doc. 43 at 30]. After requesting, and receiving, multiple extensions of time to file objections to the R&R, [1] Defendant filed objections that dispute the findings of the R&R in four discernible ways. [Doc. 49]. The objections are discussed below.

         II. Legal Standard

         The district court reviewing an R&R "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). If neither party objects, the district judge need only review the R&R for clear error and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. A party objecting to an R&R "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)) (internal quotation marks omitted.). If there are no specific objections made 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)(C), and may accept the recommendation if it is not clearly erroneous or contrary to the law. Fed. R. Crim. P. 59. In accordance with 28 U.S.C. § 636(b)(1)(C), 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 Cir. 1983).

         III. Discussion

         After conducting a de novo review of the portions of the R&R to which Defendant objects and reviewing the remainder of the R&R for clear error, the Court finds that Magistrate Judge King's findings and legal conclusions are correct. The R&R found that the second superseding indictment was sufficient and that there was no basis to dismiss it. Defendant objects to these findings on four counts.

         First, Defendant claims that the indictment was insufficient because it failed to "allege each of the essential elements of the offense, as required by Due Process." [Doc. 49 at 1]. This objection is without merit. Defendant is charged with a violation of 18 U.S.C. § 1038(a), which prohibits:

[Engaging] in any conduct with intent to convey false or misleading information under circumstances where such information may reasonably be believed and where such information indicates that an activity has taken, is taking, or will take place that would constitute a violation of [certain statutorily listed offenses].

18 U.S.C. § 1038(a). The would-be violation required by 18 U.S.C. § 1038(a) is identified in the indictment as a violation of 18 U.S.C. § 844(h)(2). [Doc. 34]. A violation of 18 U.S.C. § 844(h)(2) requires that a defendant carries an explosive during the commission of "any felony which may be prosecuted in a court of the United States." 18 U.S.C. § 844(h)(2). The indictment identifies either 18 U.S.C. § 922(g), 26 U.S.C. § 5861(a), or 26 U.S.C. § 5861(d) as the felony required by 18 U.S.C. § 844(h)(2). [Doc. 34]. Defendant does not contend that the indictment fails to state the elements and alleged supporting facts for a violation of 18 U.S.C. § 1038(a), but rather contends that the indictment is insufficient because it fails to give the elements of 18 U.S.C. § 844(h)(2) and the elements of its predicate offense(s), either 18 U.S.C. § 922(g), 26 U.S.C. § 5861(a), or 26 U.S.C. § 5861(d). [Doc. 49 at 4-5].

         Though the Government would have to prove the elements of 18 U.S.C. § 844(h)(2), and its predicate offense(s), to convict Defendant of a violation of 18 U.S.C. § 1038(a), the indictment need not state with particularity the elements of 18 U.S.C. § 844(h)(2) and its predicate offense(s). "Predicate felonies do not need to be listed in the indictment so long as the defendant has actual notice of the charge." United States v. Odom,252 F.3d 1289, 1298 (11th Cir. 2001) (citing United States v. Lehder-Rivas, 955 F.2d 1510, 1519 (11th Cir.1992)). The indictment sufficiently states the elements of a violation of 18 U.S.C. ยง 1038(a), which is the charge brought against Defendant. Moreover, the indictment states which predicate felonies the alleged violation of 18 U.S.C. ...


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