USA v. Smith

Filing 96

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 24 and 33]

I. MOTION PRESENTED
At docket 24, defendant Simon D. Smith moved to suppress hundreds of hours of
recordings made while he was incarcerated on the grounds that the secretly taped
conversations violated his Sixth Amendment right to counsel. In opposition, the United
States asserted that the motion was so broad as to make its resolution infeasible.
Instead, the United States offered to identify the specific statements it proposed to
actually use at trial. This was done with the approval of the magistrate judge.
Thereafter, defendant filed a motion at docket 33 to suppress all of the recorded
conversations specifically identified by the United States on the grounds that they were
obtained in violation of the Sixth Amendment.
Magistrate Judge Smith conducted a lengthy evidentiary hearing, transcripts of
which are at dockets 54, 55, and 62. After the matter was fully briefed, she issued a
very thorough initial report at docket 63 in which she recommended that all but two of
the statements identified by the government be suppressed. Objections were filed by
the United States at docket 67, to which defendant replied at docket 68. The magistrate

judge has not issued a final report, and this court has determined to proceed on the
basis of the initial report at docket 63.
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
This court has reviewed the file, including the objections of the United States and
defendant’s response to those objections. Having applied the standard of review
articulated above, this court finds no fault with the magistrate judge’s recommended
findings and conclusions. With respect to the United States’ objections, this court
agrees with the persuasive response filed by defendant. Accordingly, this court adopts
the findings of fact and conclusions of law recommended by the magistrate judge at
docket 63. Based thereon, the motions at dockets 24 and 33 are GRANTED as to
recorded conversation segments numbered. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 12, 13,
14, and 18, but DENIED as to recorded conversation segments numbered 16 and 17 at
which the Cooperating Individual was not present. The court takes no position at this
time on whether those conversations or portions thereof are admissible in evidence.

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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The ruling here is limited to the conclusion that they need not be suppressed on the
basis of a Sixth Amendment violation.
DATED at Anchorage, Alaska, this 1st day of September 2011.

/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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