USA v. Smith

Filing 104

Order on Motion for Miscellaneous Relief, Order on Motion to Suppress

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

UNITED STATES OF AMERICA
Plaintiff,
vs.
SIMON D. SMITH,
Defendant.

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3:10-cr-00124 JWS
ORDER FROM CHAMBERS
[Re:

Motions at docket 82 and 100;
final pre-trial conference and
trial by jury VACATED]

I. MOTIONS PRESENTED
At docket 82, defendant Simon D. Smith moved to suppress evidence discovered
as a result of the search of a Ford Taurus automobile and a Dodge Ram Charger truck.
The magistrate judge conducted an evidentiary hearing on August 12, 2011. A
transcript of that hearing is at docket 92. After the hearing and briefing on the motion,
Magistrate Judge Smith filed a report recommending that the motion be denied.
Objections were filed by defendant at docket 94. In a final report at docket 99, the
magistrate judge continued to recommend that the motion be denied.
At docket 100, the United States moved to stay further proceedings while it
pursues an interlocutory appeal from this court’s order at docket 96. That order
granted, in part, defendant’s motion to exclude from evidence various recorded
conversations. Were the motion at docket 100 granted, the court would have to vacate
the dates presently set for the final pre-trial conference and trial by jury.

II. STANDARDS OF REVIEW
A. Motion to Dismiss
With respect to the motion at docket 82 and the report from the magistrate judge,
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
B. Motion to Stay
With respect to the motion at docket 100, the United States has a right granted
by 18 U.S.C. § 3731 to appeal a decision by a district court suppressing evidence.
Such an appeal may be taken before jeopardy attaches if it is supported by a
certification from the United States Attorney that the appeal is not taken for purposes of
delay and that the suppressed evidence is “substantial proof of a fact material to the
proceeding.”5
III. DISCUSSION
This court has reviewed the file, including defendant’s objections. Having applied
the standard of review articulated above, this court finds that the magistrate judge’s
recommended findings and conclusions are correct in all material respects and that
there is nothing in the objections not adequately addressed in the report by the
magistrate judge. For this reason, Judge Smith’s recommended findings and
conclusions are adopted. Based thereon, the motion at docket 82 is DENIED.

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).

5

18 U.S.C. § 3731.

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The motion at docket 100 is supported by a certification from United States
Attorney Karen Loeffler which meets the statutory requirements. Jury selection has not
commenced, so jeopardy has not yet attached. For these reasons, the motion to stay at
docket 100 is GRANTED.
IT IS FURTHER ORDERED that the final pre-trial conference and trial by jury set
for September 12, 2011, are VACATED to be re-set following conclusion of the appeal
and receipt of the appellate court’s mandate by this court.
DATED at Anchorage, Alaska, this 6th day of September 2011.

/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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