USA v. Johnson

Filing 64

Order, Set Hearings

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

UNITED STATES OF AMERICA
Plaintiff,
vs.
DAVID JOHNSON,
Defendant.

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3:01-cr-00035JWS
ORDER FROM CHAMBERS
[Re:

Petitions at dockets 42 and 49 ]

I. BACKGROUND
At docket 42, a petition to revoke David Johnson’s supervised release was filed.
An amended petition was filed at docket 49. The amended petition at docket 49 sets
out three violations of the conditions of Johnson’s supervised release. Charged
violation 1 was commission of the crime of Assault in the Fourth Degree witnessed by a
minor child, a Grade A violation. Charged violation 2 was excessive use of alcohol, a
Grade C violation. Charged violation 3 was failure to make payments on a fine when
they were due, a Grade C violation. Defendant consented to have the magistrate judge
conduct an evidentiary hearing on the charged violations. Magistrate Judge Roberts
conducted the hearing, and a transcript was prepared and filed at docket 53. The
magistrate judge filed an initial report and recommendation at docket 55 in which he
recommended that charged violations 2 and 3 be dismissed for lack of sufficient
evidence, but that charged violation 3 was established and should proceed to
disposition. Johnson filed a timely objection, and the magistrate judge granted him
leave to submit additional evidence. The government responded to Johnson’s
objection. Thereafter, the magistrate judge issued an amended report at docket 62. No

objections were filed to the amended recommendation. The amended recommendation
added a discussion supporting the conclusion that charged violation 1 was a Grade A
violation.

II. STANDARD OF REVIEW
The district court may “accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate.”1 When reviewing a magistrate judge’s
report and recommendation in a case such as this one, the district court conducts de
novo review of all conclusions of law,2 and any findings of fact to which objections have
been made.3 Uncontested findings of fact are reviewed for clear error.4

III. DISCUSSION AND CONCLUSION
This court has reviewed the file and applied the standard of review articulated
above. Based thereon, this court can find no fault with the magistrate judge’s
recommended findings and conclusions. Magistrate Judge Roberts has correctly found
the facts and applied the law in his initial report as modified by his amended report. For
the preceding reason, this court adopts the findings of fact and conclusions of law
recommended by the magistrate judge. Based on the preceding,
IT IS ORDERED:
1) David Johnson is adjudged guilty of Violation 1.
2) Violation 1 is a Grade A violation.

1

28 U.S.C. § 636(b)(1).

2

Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989), overruled on other grounds by
Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996).
3

28 U.S.C. § 636(b)(1).

4

Taberer v. Armstrong World Industries, Inc., 954 F.2d 888, 906 (3d Cir. 1992).

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3) This court will conduct a disposition hearing on June 15, 2006, at 9:00 AM.
4) Violations 2 and 3 are each DISMISSED.
DATED at Anchorage, Alaska, this 6th day of June, 2006.

/s/
JOHN W. SEDWICK
UNITED STATES DISTRICT COURT JUDGE

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