United States District Court, N.D. Georgia, Atlanta Division
H. COHEN UNITED STATES DISTRICT JUDGE.
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].
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).
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
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
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.
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
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).
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 ...