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United States v. Barr

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

December 10, 2018

UNITED STATES OF AMERICA,
v.
MICHAEL ANTHONY BARR Defendant.

          ORDER

         This case is before the Court on the Motion to Suppress filed by Defendant Michael Anthony Barr ("Mr. Barr") [67], as well as on the Non-Final Report and Recommendation of United States Magistrate Judge Walter E. Johnson [95] and Mr. Barr's Objections to the Non-Final Report and Recommendation [100].

         I. Standard of Review

         When reviewing a magistrate judge's report and recommendation, 28 U.S.C. § 636 requires the district court to conduct "a de novo determination of those portions of the report ... to which objection is made." 28 U.S.C. § 636(b)(1). The Court therefore must conduct a de novo review of the report and recommendation if a party files a "proper, specific objection" to a factual finding contained therein. Macort v. Prem. Inc., 208 Fed.Appx. 781, 784 (11th Cir. 2006); United States v. Gaddy,, 894 F.2d 1307, 1315 (11th. Cir. 1990).

         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 June 12, 2018, a grand jury in the Northern District of Georgia returned a nine-count Superseding Indictment against Mr. Barr and against Defendant Nadya Ivette Diaz. (Superseding Indictment (Docket Entry No. 35).) The indictment charged both defendants with knowingly and willfully conspiring, in violation of 18 U.S.C. § 371, for Mr. Barr to possess firearms after being convicted of a felony, in violation of 18 U.S.C. §§ 2 and 922(g)(1). (Id.)

         The indictment also charged Mr. Barr with additional offenses: (1) possession of a silencer that was not registered to him, in violation of 26 U.S.C. §§ 5861(d), 5845(a)(7), and 5871; (2) possessing a shotgun with a barrel of less than eighteen (18) inches in length, in violation of 26 U.S.C. §§ 5861(d), 5845(a)(2), and 5871; (3) possession of a firearm while being an unlawful user of a controlled substance, in violation of 18 U.S.C. § 922(g)(3); and (4) unlawfully using the identity "C.F." to obtain a temporary motor vehicle registration, in violation of 18 U.S.C. § 1028(a)(7) and in violation of Georgia law as codified at O.C.G.A. § 16-10-71. (Id.)

         Mr. Barr filed a Motion to Suppress on August 10, 2018. (Mot. to Suppress (Docket Entry No. 67).) The Court therefore conducted an evidentiary hearing on September 12, 2018, (Docket Entry No. 76), which has been transcribed. (Tr. (Docket Entry No. 74).)

         On November 29, 2018, Judge Johnson issued his Non-Final Report and Recommendation on Mr. Barr's Motion to Suppress. (Non-Final Report & Recommendation (Docket Entry No. 95).) He recommended that the Court deny the Motion. Mr. Barr filed Objections to the Non-Final Report and Recommendation on December 10, 2018. (Objs. (Docket Entry No. 100).) The Court therefore finds this matter ripe for resolution.

         B. Factual Background

         On August 31, 2017, officers of the Whitfield County Sheriffs Office (the "Sheriffs Office") arrested Mr. Barr at his home. (Tr. at 11-12.) At the time of his arrest, Mr. Barr asked the officers to retrieve his cell phones from inside the home. (id. at 13.) Mr. Barr also invoked his constitutional right to counsel by requesting an attorney, (id. at 3-4.)

         That evening, the lead investigator, Detective Rickey Dewayne Holmes, approached Mr. Barr while he was in the jail's booking area to advise Mr. Barr of his charges. (Tr. at 12, 16, 2-27.) At this time, Mr. Barr asked Detective Holmes if they could talk. (id. at 12, 15-16, 26-27.) Detective Holmes then reminded Mr. Barr that he had invoked his right to counsel upon arrest, and he declined to speak with Mr. Barr that evening. (Id. at 12, 27.) Detective Holmes told Mr. Barr that he should think about whether he wanted to speak without an attorney, then said that they could meet the next day if Mr. Barr still wished to talk. (id. at 12, 27-29.)

         On September 1, 2017, Detective Holmes asked the jailors to bring Mr. Barr to an interview room. (Tr. at 13.) Detective Holmes also asked an evidence technician to bring Mr. Barr's cell phones. (Id.) Mr. Barr was in the interview room when Detective Holmes entered. (Id. at 14-15, 30.) Detective Holmes asked Mr. Barr if he still wanted to talk without an attorney present. (Id.) Mr. Barr responded that this depended on what Detective Holmes wanted to talk about. (Id. at 15-16, 30-31.) Detective Holmes informed Mr. Barr that he could decline to answer any question. (Id. at 16, 31.) ...


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