Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Beck

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

December 12, 2019

UNITED STATES OF AMERICA
v.
JIM C. BECK, Defendant.

          ORDER

          MARK H. COHEN UNITED STATES DISTRICT JUDGE.

         This action comes before the Court on the Report and Recommendation ("R&R") of Magistrate Judge Justin S. Anand [Doc. 45] recommending that Defendant's Amended Motion to Disqualify Counsel and to Suppress Statements ("Def.'s Mot.") [Doc. 33] be denied. The Order for Service of the R&R [Doc. 46] provided notice that, in accordance with 28 U.S.C. § 636(b)(1), the parties were authorized to file objections within fourteen (14) days of the receipt of that Order. Defendant has filed objections to the R&R ("Def.'s Objs.") [Doc. 48].

         I. LEGAL STANDARD

         In reviewing a Magistrate Judge's R&R, 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)). If there are no specific objections to factual findings made by the Magistrate Judge, there is no requirement that those findings be reviewed de novo. Garvey v. Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993) (citations omitted). 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), and may accept the recommendation if it is not clearly erroneous or contrary to the law. FED. R. Crim. P. 59(a). In accordance with 28 U.S.C. § 636(b)(1) 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. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).

         II. DISCUSSION

         As an initial matter, in support of his Objections, Defendant "relies upon the argument set out in his previously-filed briefs and adopts the same as his objections to the R&R." Def.'s Objs. at 1. "[A] party does not state a valid objection to an R&R by merely incorporating by reference previous filings." Hammonds v. Jackson, No. 13-CV-711-MHS, 2015 WL 12866453, at *6 n.2 (N.D.Ga. May 18, 2015); see also Jacobs v. Usner, No. CV 08-470, 2016 WL 4803917, at * 1 (W.D. Pa. Sept. 14, 2016) ("When filing objections to a report and recommendation, underlying briefs may not be incorporated by reference."); Masimo Corp. v. Philips Elec. N.A. Corp., 62 F.Supp.3d 368, 376 (D. Del. 2014) (holding that underlying briefs may not be incorporated by reference when filing objections to a report and recommendation); Morrison v. Parker, 90 F.Supp.2d 876, 878 (W.D. Mich. 2000) (citations omitted) ("Plaintiffs' general, nonspecific objections, purporting to incorporate by reference their earlier brief, are tantamount to no objection at all and do not warrant further review."). Accordingly, the Court will not review the prior arguments made by Defendant to Judge Anand, but only will consider specific objections made to the R&R.

         Defendant first criticizes the R&R for being "internally inconsistent" as to whether Rule 4.2(a) of the Georgia Rules of Professional Conduct, which restricts a lawyer's communications with another person known to be represented by a lawyer, also bars the government's use of a cooperating informant to communicate with a represented defendant prior to the issuance of an indictment. Def.'s Objs. at 1-3. The relevant rule states as follows: "A lawyer who is representing a client in a matter shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order." Ga. R. Prof. Conduct 4.2(a). The commentary to Rule 4.2(a) provides an important exception with respect to law enforcement activities:

A lawyer having independent justification or legal authorization for communicating with a represented person is permitted to do so. . . . Communications authorized by law . . . include constitutionally permissible investigative activities of lawyers representing governmental entities, directly or through investigative agents. Prior to the commencement of criminal or civil enforcement proceedings, when there is applicable judicial precedent that either has found the activity permissible under this Rule or has found the Rule inapplicable.

Ga. R. Prof. Conduct 4.2(a), cmts. 1-2.

         Judge Anand found as follows: (1) there appears to be no Georgia judicial precedent as to whether pre-indictment, covert criminal investigative activities are authorized under Rule 4.2, (2) at least one Georgia Superior Court Judge and many federal courts have found such conduct to be permissible, (3) the few cases cited by Defendant that have found or suggested potential violations involved overt, direct contacts by prosecutors or law enforcement agents directed by them as opposed to undercover informants, and (4) there are strong policy reasons why Rule 4.2(a) should not apply to legitimate, covert investigation techniques. R&R at 4-14. Notwithstanding the above, because there is no binding judicial precedent in Georgia, Defendant argues that the Court should conclude that the United States' activity in using a cooperating witness (referred to in the indictment as "M.B.") is illegal because it violates Rule 4.2(a) and there is an absence of Georgia legal precedent. Def.'s Mot. at 10; Def.'s Objs. at 2. Judge Anand considered this argument and rejected it, finding that

under the natural meaning of the phrase "applicable judicial precedent," the Court is not limited to binding decisions of the Supreme Court of the United States, the Eleventh Circuit, or Georgia's appellate courts. Rather, the Court can consider the overwhelming weight of the non-binding but persuasive caselaw from neighboring or other inferior jurisdictions dealing with the same or similar issues.
Thus, while Georgians] no-contact rule applies to pre-indictment conduct by prosecutors, this Court finds persuasive the great majority of the cases that have found covert investigative contacts by informants to be within the "authorized by law" exception. Thus, the Court finds no violation based on the facts alleged here.

R&R at 16-17 (footnote omitted).

         This Court agrees with Judge Anand. Defendant's position that, in the absence of binding precedent as to what is acceptable conduct under a Georgia Rule of Professional Conduct, all such conduct becomes automatically illegal, would lead to absurd results. Even when there is no binding precedent with respect to the interpretation of constitutional, statutory, or regulatory provisions, courts in this circuit frequently consider the authority of other courts that have considered the same issue to be persuasive. See, e.g., Carden v. Town of Harpersville, No. 2:15-CV-01381-RDP, 2017 WL 4180858, at *19 (N.D. Ala. Sept. 21, 2017); United States v. $83, 274.51, No. 2:13-CV-153-JEO, 2013 WL 5524729, at *4 (N.D. Ala. Sept. 30, 2013); United States v. Jackson, No. CR295CR174-WHA, 2007 WL 1125646, at *1 (M.D. Ala. Apr. 16, 2007). Moreover, the modifier "applicable" to the term "judicial precedent" in the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.