Villarreal v. USA

Filing 58

ORDER Adopting and Affirming 53 Report and Recommendations: 35 Motion for Stay Pending Appeal is denied, by Judge Christine M. Arguello on 11/19/12.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 11-cv-01000-CMA-CBS
SALOMON JUAN MARCOS VILLARREAL,
Petitioner,
v.
UNITED STATES,
Respondent.

ORDER ADOPTING AND AFFIRMING AUGUST 14, 2012
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This case was referred to United States Magistrate Judge Craig B. Shaffer
pursuant to 28 U.S.C. § 636 and Fed. R. Civ. P. 72. (Doc. # 4.) On November 28,
2011, Judge Shaffer issued a Recommendation (Doc. # 29) advising the Court to grant
the Government’s July 22, 2011 “Motion for Summary Judgment with Respect to
Petition to Quash a Summons Served on American National Bank and Motion for
Enforcement of IRS Summons” (Doc. # 13). The Court agreed with Judge Shaffer and,
on March 23, 2012, entered a written order adopting and affirming the Recommendation
and, thereby, granting the Government’s summary judgment motion. (Doc. # 33.)
Thereafter, Petitioner filed a notice of appeal (Doc. # 36) and also moved to stay the
operation of the Court’s judgment, and the enforcement of the IRS summons, pending
the outcome of the appeal (Doc. # 35). On May 22, 2012, after the motion was fully

briefed,1 Judge Shaffer held a non-evidentiary hearing to address it. (See Doc. ## 47
and 54.) On August 14, 2012, Judge Shaffer convened a telephonic status conference
with the parties and read his Recommendation into the record. (See Doc. ## 52; 53;
and 55.) Petitioner timely filed objections to the August 14, 2012 Recommendation
(Doc. # 56), to which the Government responded (Doc. # 57).
When a magistrate judge issues a recommendation on a dispositive matter,2
Fed. R. Civ. P. 72(b)(3) requires that the district judge “determine de novo any part of
the magistrate judge=s [recommended] disposition that has been properly objected to.”
In conducting its review, “[t]he district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.” Id. Accordingly, the Court has conducted a
de novo review of this matter, including carefully reviewing the record, especially the
briefing related to Petitioner’s motion to stay, the August 14, 2012 Recommendation,
Petitioner=s objections to the Recommendation, and the Government’s response
thereto. Based on this de novo review, the Court concludes that Judge Shaffer’s
recommendation is correct and is not called into question by Petitioner’s objections –

1

The Government filed a response on April 27, 2012 (Doc. # 42), to which Petitioner replied on
May 11, 2012 (Doc. # 46).

2

Judge Shaffer treated as dispositive Petitioner’s motion to stay. (See Doc. # 55 at 5.) The
parties did not object to Judge Shaffer proceeding via Recommendation to this Court. As such,
and in accordance with the standards set forth in the text, above, the Court has reviewed this
matter de novo.

2

which merely rehash arguments raised in the briefing and with Judge Shaffer during the
May 22, 2012 hearing.
Accordingly, it is hereby ORDERED that Petitioner’s objections (Doc. # 56) are
OVERRULED. It is
FURTHER ORDERED that the Recommendation of United States Magistrate
Judge Craig B. Shaffer (Doc. # 53) is AFFIRMED and ADOPTED as an Order of this
Court. Pursuant to the Recommendation, it is
FURTHER ORDERED that “Petitioner’s Motion for Stay Pending Appeal” (Doc.
# 35) is DENIED.3
DATED: November 19th , 2012
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

3

Such denial includes Petitioner’s request, raised for the first time in his “Reply in Further
Support for Motion for Stay Pending Appeal,” that the Court “enter a stay sufficient to maintain
the status quo while Petitioner seeks a stay pending appeal from the appellate court.” (Doc.
# 46 at 9.)

3