United States District Court, N.D. Georgia, Rome Division
case is before the Court on Defendant's Motion to Dismiss
Indictment for Prosecutorial Misconduct , as well as on
the Non-Final Report and Recommendation of United States
Magistrate Judge Walter E. Johnson  and Defendant's
Objections to the Non-Final Report and Recommendation .
Standard of Review
reviewing a magistrate judge's report and recommendation,
the district court must conduct "a de novo determination
of those portions of the report... to which objection is
made." 28 U.S.C. § 636(b)(1).
findings of the magistrate judge are subject to de
novo review only if a party files a "proper,
specific objection." 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 only for
clear error. Macort, 208 Fed.Appx. at 784.
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
12, 2018, a grand jury in the Northern District of Georgia
returned a nine-count Superseding Indictment against
Defendant. (Superseding Indictment (Docket Entry No. 35).)
The United States had charged Defendant with various
offenses, most of them pertaining to the unlawful possession
of firearms, (id.) The Superseding Indictment also
named Defendant's girlfriend, Nadya Ivette Diaz
("Ms. Diaz"), as a co-conspirator in
Defendant's crimes. (Id.)
March 29, 2019, Defendant filed a Motion to Dismiss
Indictment. (Docket Entry No. 124.) In his Motion, Defendant
contends that the Assistant United States Attorney
prosecuting this case, Ms. Jessica Morris, wrongfully abused
the discovery process as part of a scheme to "turn
[Defendant's co-defendant and girlfriend" against
him. (Id. at 3.) Specifically, Defendant alleges
that Ms. Morris sent the full contents of his cell
phone-including text messages and photos that Defendant
exchanged with other women-to Ms. Diaz's home as
discovery materials. (id. at 2-3.) Based on this
alleged misconduct, Defendant now seeks dismissal of the
Superseding Indictment, (Id. at 7.)
accordance with this Court's Local Rules, Defendant's
Motion was initially referred to a magistrate judge. After
full review, United States Magistrate Judge Walter E. Johnson
recommended that the Court deny the Motion. (Non-Final Report
& Recommendation (Docket Entry No. 132) at 4.) Defendant
filed timely objections to Judge Johnson's Report and
Recommendation. (Objs. (Docket Entry No. 143).) The Court
accordingly finds this matter ripe for resolution.
Court finds that Judge Johnson accurately stated the law
governing claims of prosecutorial misconduct.
"[Dismissal of an indictment for prosecutorial
misconduct is an extreme sanction which should be
infrequently utilized." United States v.
Accetturo, 858 F.2d 679, 681 (11th Cir. 1988) (quoting
United States v. Pabian, 704 F.2d 1533, 1536 (11th
Cir. 1983)). Furthermore, even in the case of "the most
egregious prosecutorial misconduct," dismissal of the
indictment "must depend upon a showing of actual
prejudice to the accused." United States v.
Merlino, 595 F.2d 1016, 1018 (5th Cir. 1979): see
also United States v. O'Keefe, 825 F.2d 314 (11th
Cir. 1987) ("[P]rejudice to the defendant is an
essential element when a criminal defendant seeks dismissal
of an indictment due to prosecutorial misconduct.").
this standard to the facts at hand, Judge Johnson correctly
found that "[t]here simply is no basis for a
prosecutorial misconduct claim here." (Non-Final Report
& Recommendation at 3.) Defendant has not shown-or even
argued-that the prosecutor's actions during discovery
actually prejudiced his case in any way. Thus, even presuming
the existence of misconduct, Defendant is not entitled to the
extreme and extraordinary sanction of dismissing the
Superseding Indictment. The Court therefore will adopt Judge
Johnson's Non-Final Report and Recommendation.
the Court ADOPTS the Non-Final Report and Recommendation of
United States District Judge Walter E. Johnson ,
OVERRULES Defendant's Objections thereto , and
DENIES Defendant's ...