USA v. Thoms et al
Order on Motion for Reconsideration
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
TRACE RAE THOMS &
JENNIFER ANNE THOMS,
ORDER AND OPINION
Motion at Docket 192]
I. MOTION PRESENTED
At docket 192, the United States of America (“the government”) moves for
reconsideration of the order at docket 186, which rejected the report and
recommendation at docket 174 and granted the defendants’ motion to suppress at
II. STANDARD OF REVIEW
Under Federal Rule 59(e), the court may “reconsider and amend a previous
order.”1 A motion under Rule 59(e) “should not be granted, absent highly unusual
circumstances, unless the district court is presented with newly discovered evidence,
committed clear error, or if there is an intervening change in the controlling law.”2
Carroll v. Nakatani, 342 F.3d 934, 935 (9th Cir. 2003); see Fed. R. Civ. P. 59(e).
Herbst v. Cook, 260 F.3d 1039, 1044 (9th Cir. 2001) (internal quotations omitted).
A. The Government’s Motion Is Not In Compliance With the Local Rules
Local Rule 59.1(c) limits a motion for reconsideration to five pages.3 The present
motion is ten pages. Despite its deficiency, the court has decided to consider the
government’s motion in its entirety to avoid delay.
B. A De Novo Evidentiary Hearing Was Not Required
Section 636(b)(1)(B) of Title 28 provides that “a judge may . . . designate a
magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a
judge of the court proposed findings of fact and recommendations for the disposition, by
a judge of the court.”4 Section 636(b) also provides as follows:
[a] judge of the court shall make a de novo determination of those portions
of the report or specified proposed findings or recommendations to which
objection is made. A judge of the court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate
judge. The judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.5
The government argues that the court was required to conduct its own de novo
evidentiary hearing prior to rejecting Magistrate Judge Roberts’ report and
recommendation.6 In support of its contention, the government cites United States v.
Bergera7 and United States v. Ridgway.8 Neither case requires an additional hearing in
the circumstances of this case.
D.Ak. LR 59.1(c).
28 U.S.C. § 636(b)(1)(B).
Id. § 636(b)(1).
Doc. 192 at 4.
512 F.2d 391, 392 (9th Cir. 1975).
300 F.3d 1153 (9th Cir. 2002).
In Bergera, the magistrate judge recommended granting the defendants’ motion
to suppress.9 The district judge reversed the magistrate and denied the motion.10 The
Ninth Circuit determined that “[i]f . . . [a] district court chooses to reject the
recommendation of the magistrate judge, it must itself hear the testimony and see the
evidence before deciding the motion.”11 The court reasoned that a “defendant is entitled
to the assurance that important factual conclusions will be drawn from the testimony
and other evidence itself. That assurance is provided if the district court decides the
motion in accordance with the recommendations of [the magistrate judge] . . . [b]ut . . .
is . . . absent if the district court is allowed to disregard the recommendation of the
magistrate and decide the motion” without conducting its own evidentiary hearing.12
In Ridgway, as in Bergera, the district judge rejected the magistrate judge’s
recommendation to grant a motion to suppress, and “denied the motion to suppress
without conducting a de novo evidentiary hearing.”13 The Ninth Circuit clarified that
“[u]nder the law of this circuit, a district court errs when it does not conduct a de novo
evidentiary hearing if it rejects the credibility finding of a magistrate judge who
recommends the granting of a motion to suppress.”14 After first acknowledging that the
Supreme Court has viewed the issue in terms of a defendant’s right to due process, the
Ridgway court noted that under its reading of the Bergera rule, “[t]hat specific holding is
not undercut either by [United States v.] Raddatz15 or by the amendments to the Federal
Magistrates Act.”16 As this court reads the law, Ridgway recognized that the necessity
Bergera, 512 F.2d at 392.
Id. at 394.
Id. (emphasis added).
Ridgway, 300 F.3d at 1155.
Id. at 1157 (citing Bergera, 512 F.2d at 392–94) (emphasis added).
447 U.S. 667 (1980).
Ridgway, 300 F.3d at 1157 (emphasis added).
of a de novo evidentiary hearing is properly framed “in terms of a defendant’s right to
In Raddatz, the Supreme Court determined that acceptance of a magistrate
judge’s credibility determination without a de novo evidentiary hearing is consistent with
due process. The Court emphasized that 28 U.S.C. § 636(b)(1)(B) requires a de novo
“determination” and not a de novo hearing.18 The Court stated that “nothing in the
legislative history of the statute . . . support[s] the contention that [a] judge is required to
rehear the contested testimony in order to carry out the statutory command to make the
The Court also noted that “[n]either the statute nor its legislative history reveals
any specific consideration of the situation where a district judge after reviewing the
record in the process of making a de novo ‘determination’ has doubts concerning the
credibility findings of the magistrate.”20 In the absence of such “specific consideration,”
courts are left with the text of the statute, which, as extensively discussed in Raddatz,
requires only a de novo determination. The Court “assume[d] it . . . unlikely that a
district judge would reject a magistrate’s proposed findings on credibility when those
findings are dispositive” because “to do so without seeing and hearing the witness or
witnesses whose credibility is in question could well give rise to serious questions.”21
However, there is no identifiable source for such serious question beyond the Due
Because a defendant’s due process rights are not at issue when a motion to
suppress is granted over a magistrate judge’s recommendation, a de novo evidentiary
hearing is not necessarily required. That is not to deny that in many cases, a district
Id. at 1156 (citing Raddatz, 447 U.S. at 680).
Raddatz, 447 U.S. at 673–74.
Id. at 674.
Id. at 681 n.7.
Raddatz, 447 U.S. 681 n.7.
court might need to conduct a second evidentiary hearing. However, here, this court
has had access to a transcript of the original evidentiary hearing and has explained at
length how the evidence presented renders it highly improbable (indeed, it seems to this
court in light of all the evidence, virtually impossible) that Investigator Young could smell
the marijuana grow under the circumstances that existed at the time. That conclusion
would not change simply because this court heard the evidence all over again. The
issue here does not turn on the demeanor of the witnesses, but rather on the
implausibility of the officer’s conclusion that he smelled the marijuana grow inside a
sealed building at least 450 feet away, which was screened by forest vegetation and a
hill with a house on it. These considerations, which are paramount in rendering Young’s
conclusion unbelievable, are either derived directly from or are entirely consistent with
Investigator Young’s own testimony.22 It would serve no purpose but delay to conduct a
second hearing to hear the testimony all over again. This court concludes that in the
circumstances of this case it is not inconsistent with the case law to have suppressed
the evidence without first conducting a second evidentiary hearing. Moreover, that
conclusion is indisputably consistent with the relevant statutes.
For the reasons above, the government’s motion at docket 192 for
reconsideration of the order at docket 186 is DENIED.
DATED at Anchorage, Alaska, this 28th day of April 2011.
/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE
Other evidence was also considered and supports this court’s decision as explained in
the order at docket 186.
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