United States District Court, N.D. Georgia, Atlanta Division
Richard W. Story United States District Judge
matter is before the Court on the Report and Recommendation
of Magistrate Judge John K. Larkins, III [Doc. No. 168].
reviewing a 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). “Parties 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.” 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). Absent objection, the district
judge “may accept, reject, or modify, in whole or in
part, the findings and recommendations made by the magistrate
[judge], ” 28 U.S.C. § 636(b)(1), and “need
only satisfy itself that there is no clear error on the face
of the record” in order to accept the recommendation.
Fed.R.Civ.P. 72, advisory committee note, 1983 Edition,
Subdivision (b). In accordance with 28 U.S.C. §
636(b)(1) and Rule 72 of the Federal Rules of Civil
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. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983).
Defendant Everett objects to the Recommendation regarding his
Motion to Suppress. Specifically, Defendant argues that he
should have been permitted to subpoena the store employees to
testify to the facts about which they had the most direct
knowledge and about which the officer could not or did not
testify. Defendant argues that the identifications are not
reliable and should be suppressed as the product of an unduly
suggestive procedure because the officers who testified
failed to follow state law, Department of Justice policy, and
their own department's procedures for recording the
identification process, having a blind identification process
with an officer who does not know who the suspect is, and
documenting the identification process with the number of
rounds the photographs were shown and in what order they were
Eleventh Circuit has adopted a two-part analysis to determine
whether an out-of-court identification procedure violates due
process. First, the Court considers whether the
identification procedure was unduly suggestive. United
States v. Diaz, 248 F.3d 1065, 1102 (11th Cir. 2001). If
the Court concludes that the identification procedure was not
unduly suggestive, then the inquiry ends. If, however, the
Court concludes that it was unduly suggestive, then the Court
considers whether, under the totality of the circumstances,
the identification was nevertheless reliable. Id.
The Supreme Court has identified factors the Court should
consider to determine the reliability of an identification,
including: (1) the opportunity the witness had to view the
suspect at the time of the crime; (2) the witness's
degree of attention; (3) the accuracy of the witness's
prior description of the suspect; (4) the level of certainty
demonstrated by the witness in making her identification; and
(5) the length of time between the crime and the
identification. Id. (citing Neil v.
Biggers, 409 U.S. 188 (1972)).
Court has considered the cumulative effect of the differences
between Defendant Everett's photograph and the other
photographs shown to the witnesses and finds that the
identification procedure was not unduly suggestive because of
the photographs used in the lineup. Also, although the Court
acknowledges that Officer Todman did not follow state law or
departmental policy in the way he conducted the photo
identification, his administration of the lineup was not
unduly suggestive. Even assuming the procedure was unduly
suggestive, though, the identifications were sufficiently
reliable in view of the factors set forth in Diaz.
This objection is OVERRULED.
Defendant objects to the recommendation regarding his Motion
to Dismiss particular § 924(c) counts in the indictment.
Defendant acknowledges that binding precedent precludes the
Court from granting the relief requested [Doc. No. 173, p.
6]. This objection is OVERRULED.
reasons discussed above, Defendant's objections [Doc. No.
173] are OVERRULED, and the Report and Recommendation [Doc.
No. 168] is hereby approved and adopted as the opinion and
order of this Court. As such, Defendant Everett's Motion
to Suppress [Doc. No. 116] is DENIED, and Defendant
Everett's Motion to Dismiss the § 924(c) Counts
[Doc. No. 117] is DENIED. Defendant Everett's Motion to
Dismiss the Indictment as to the § 924(c) Enhancement
[Doc. No. 125] is DENIED without prejudice to Defendant
raising the issue at sentencing. The Court will set this case