United States of America v. Jenkins et al
DECISION AND ORDER accepting and adopting # 13 Magistrate Judge Dancks' Report and Recommendation in its entirety; and Defendant's objections to the writ of garnishment is overruled. Signed by Judge Glenn T. Suddaby on 8/25/15. (lmw) (Copy served upon pro se defendant via regular mail)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
HON. RICHARD S. HARTUNIAN
U.S. Attorney for the Northern District of New York
Counsel for the United States
P.O. Box 7198
100 South Clinton Street
Syracuse, New York 13261-7198
WILLIAM F. LARKIN, ESQ.
Assistant U.S. Attorney
JOSEPH JENKINS, No. 28190
Defendant, Pro Se
Oneida County Jail
6075 Judd Road
Oriskany, New York 13424
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this application for a writ of garnishment under 28 U.S.C.
§ 3205(b)(1), are Defendant’s objection to the writ of garnishment, United States Magistrate
Judge Thérèse Wiley Dancks’ Report-Recommendation recommending that the Court overrule
Defendant’s objection to the writ of garnishment, and Defendant’s Objections to that ReportRecommendation. (Dkt. Nos. 13, 14.) For the reasons set forth below, the ReportRecommendation is accepted, and Defendant’s objection to the writ of garnishment is overruled.
Because Magistrate Judge Dancks correctly summarized the factual and procedural
history of this action in Part I of her Report-Recommendation and the parties do not object to
that summary, the Court will not recite that information in this Decision and Order, which is
intended primarily for the review of the parties; rather, the Court will respectfully refer the
reader to Part I of the Report-Recommendation. (Dkt. No. 13, at 2-3.)
Generally, in her Report-Recommendation, Magistrate Judge Dancks rendered the
following findings of fact and conclusions of law: (1) if a party objecting to a writ of
garnishment fails to set forth a colorable claim regarding one of the three issues identified in 28
U.S.C. § 3205(c)(5), the Court need not hold a hearing with regard to the objection; (2) here,
because Defendant does not (in his written objections to the writ of garnishment) set forth a
colorable claim regarding one of the three issues identified in 28 U.S.C. § 3205(c)(5), he is not
entitled to a hearing and his objection should be overruled; and (3) while Plaintiff never moved
in the district court for a stay of enforcement of the judgment of conviction pending appeal, he
did subsequently make two such requests in the Second Circuit (which have not yet been
decided), and the Report-Recommendation expresses no opinion on whether or not this Court
would have jurisdiction to consider such a motion now. (Dkt. No. 13.)
Generally, in his Objections to the Report-Recommendation, Defendant asserts the
following three arguments: (1) the United States did not possess jurisdiction to enter a criminal
judgment against him because there was pending, at the time, a previously filed criminal
proceeding in a Canadian court; (2) the appeal that Defendant filed on November 18, 2014, from
the criminal judgment issued on that same date deprives the Court of jurisdiction over the United
States’ application for a writ of garnishment filed on January 6, 2015, which is intended to
satisfy that judgment; and (3) the standard for an injunction is satisfied because he is likely to
prevail on the merits of his case (for the first reason set forth above), and there exist sufficiently
serious questions going to the merits to make them a fair ground for litigation, taken together
with a balance of hardships tipping decidedly toward him (because the retirement funds that are
sought to be garnished are not connected to any alleged wrongdoing and are needed by him to
retain the counsel of his choice). (Dkt. No. 14.) In addition, Defendant attempts to adduce a
supporting “affidavit” that asserts, inter alia, that the public defender representing him at trial
“neglected” to file a motion for a stay of the enforcement of the judgment against him. (Dkt. No.
14, at 7, ¶ 4.)
STANDARD GOVERNING REVIEW OF A REPORT-RECOMMENDATION
When a specific objection is made to a portion of a magistrate judge's report-
recommendation, the Court subjects that portion of the report-recommendation to a de novo
review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific,” the objection
must, with particularity, “identify  the portions of the proposed findings, recommendations,
or report to which it has an objection and  the basis for the objection.” N.D.N.Y. L.R.
72.1(c).1 When performing such a de novo review, “[t]he judge may . . . receive further
See also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)
(“Although Mario filed objections to the magistrate's report and recommendation, the statement
with respect to his Title VII claim was not specific enough to preserve this claim for review. The
only reference made to the Title VII claim was one sentence on the last page of his objections,
where he stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set
forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.’
This bare statement, devoid of any reference to specific findings or recommendations to which
he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title
evidence. . . .” 28 U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider
evidentiary material that could have been, but was not, presented to the magistrate judge in the
first instance.2 Similarly, a district court will ordinarily refuse to consider argument that could
have been, but was not, presented to the magistrate judge in the first instance. See Zhao v. State
Univ. of N.Y., 04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) (“[I]t is
established law that a district judge will not consider new arguments raised in objections to a
magistrate judge's report and recommendation that could have been raised before the magistrate
but were not.”) (internal quotation marks and citation omitted); Hubbard v. Kelley, 752 F.
Supp.2d 311, 312-13 (W.D.N.Y. 2009) (“In this circuit, it is established law that a district judge
will not consider new arguments raised in objections to a magistrate judge's report and
recommendation that could have been raised before the magistrate but were not.”) (internal
quotation marks omitted).
When only a general objection is made to a portion of a magistrate judge's
report-recommendation, the Court subjects that portion of the report-recommendation to only a
clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee
See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In
objecting to a magistrate's report before the district court, a party has no right to present further
testimony when it offers no justification for not offering the testimony at the hearing before the
magistrate.”) [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v.
Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (district court did not abuse its
discretion in denying plaintiff's request to present additional testimony where plaintiff “offered
no justification for not offering the testimony at the hearing before the magistrate”); cf. U. S. v.
Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to require the
district court to conduct a second hearing whenever either party objected to the magistrate's
credibility findings would largely frustrate the plain objective of Congress to alleviate the
increasing congestion of litigation in the district courts.”); Fed. R. Civ. P. 72(b), Advisory
Committee Notes: 1983 Addition (“The term ‘de novo’ does not indicate that a secondary
evidentiary hearing is required.”).
Notes: 1983 Addition; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3
(N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007
(2d Cir. 1999). Similarly, when an objection merely reiterates the same arguments made by the
objecting party in its original papers submitted to the magistrate judge, the Court subjects that
portion of the report-recommendation challenged by those arguments to only a clear error
review.3 Finally, when no objection is made to a portion of a report-recommendation, the Court
subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P.
72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error”
review, “the court need only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.” Id.4
After conducing the appropriate review, the Court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §
See Mario, 313 F.3d at 766 (“Merely referring the court to previously filed papers
or arguments does not constitute an adequate objection under either Fed. R. Civ. P. 72(b) or
Local Civil Rule 72.3(a)(3).”); Camardo v. Gen. Motors Hourly-Rate Emp. Pension Plan, 806 F.
Supp. 380, 382 (W.D.N.Y. 1992) (explaining that court need not consider objections that merely
constitute a "rehashing" of the same arguments and positions taken in original papers submitted
to the magistrate judge); accord, Praileau v. Cnty. of Schenectady, 09-CV-0924, 2010 WL
3761902, at *1, n.1 (N.D.N.Y. Sept. 20, 2010) (McAvoy, J.); Hickman ex rel. M.A.H. v. Astrue,
07-CV-1077, 2010 WL 2985968, at *3 & n.3 (N.D.N.Y. July 27, 2010) (Mordue, C.J.); Almonte
v. N.Y.S. Div. of Parole, 04-CV-0484, 2006 WL 149049, at *4 (N.D.N.Y. Jan. 18, 2006) (Sharpe,
See also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July
31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's]
report to which no specific objection is made, so long as those sections are not facially
erroneous.”) (internal quotation marks and citations omitted).
After carefully considering the matter, the Court accepts and adopts the findings and
conclusions rendered by Magistrate Judge Dancks for the reasons stated in her ReportRecommendation. To those reasons, the Court adds only three points.
First, in his Objections, Defendant does not set forth any specific objection to a portion of
a Magistrate Judge Dancks’ Report-Recommendation. Moreover, Defendant’s deprivation-ofjurisdiction argument could have been, but was not, presented to Magistrate Judge Dancks in the
first instance. (Compare Dkt. No. 14, at 2-3 [Objection to Report-Recommendation] with Dkt.
No. 7 [Objection to Writ of Garnishment].) As a result, the Magistrate Judge Dancks’
Report-Recommendation need be subjected to only a clear-error review, which it easily survives.
Second, Defendant’s attempt to adduce an affidavit during the Objection phase of this
proceeding fails for two alternative reasons: (a) as an initial matter, his “affidavit” is neither
notarized nor verified pursuant to 28 U.S.C. § 1746; and (b) in any event, he has not shown that
the “affidavit” could not have been presented to Magistrate Judge Dancks before she issued her
Report-Recommendation (see, supra, Part II of this Decision and Order).
Third, even if the Court were to subject Magistrate Judge Dancks’ ReportRecommendation to de novo review (which it declines to do, as a threshold matter), it would find
that the Report-Recommendation survives that review. In support of his argument that the Court
has been deprived of jurisdiction, Plaintiff appears to rely on Griggs v. Provident Consumer
Disc. Co., 459 U.S. 56, 58 (1982), wherein the Supreme Court stated that “the filing of a notice
of appeal is an event of jurisdictional significance–it confers jurisdiction on the court of appeals
and divests the district court of its control over those aspects of the case involved in the appeal.”
(Dkt. No. 14, at 2-3.) In Griggs, the Supreme Court was addressing only the general rule. See,
e.g., Lindsey v. Clark, 12-CV-0923, 2014 WL 5817010, at *2 (W.D. Wis. Nov. 10, 2014)
(referring to the language from Griggs as “the general rule,” and explaining that, “[h]owever, the
district court retains jurisdiction over ‘ancillary questions’ that are not the matters appealed”).
The particular rules in this circumstance are set forth in Fed. R. App. P. 8(c) and Fed. R. Crim.
P. 38(c),(e), which, rather than providing that a district court is automatically deprived of
jurisdiction upon the filing of an appeal, provide that a stay of a sentence to pay a fine or
restitution pending an appeal may be obtained only if certain requirements are met (none of
which have been met in this case).5 As a magistrate judge in the District of North Dakota
[T]he federal courts have long held that parties may proceed to execute
upon a monetary judgment notwithstanding a pending appeal of the
judgment–a rule that is applied in both civil and criminal cases. . . . In
fact, the ability to execute upon a monetary judgment notwithstanding a
pending appeal is implicitly recognized by . . . Fed. R. Crim. P. 38(c) &
(e), which provide civil and criminal judgment debtors, respectively, the
opportunity to seek a stay of enforcement of the judgment, or other
appropriate relief, pending appeal. . . . The federal courts have also long
considered execution of a civil or criminal judgment to be an ancillary
proceeding such that the district courts are not divested of jurisdiction by
the filing of an appeal and are free to issue orders in aid of execution that
has not been stayed. . . . Thus, even if Kieffer is challenging on appeal the
criminal judgment, the entitlement to restitution, and/or the restitution
amount, this court may continue to exercise jurisdiction over collateral
For example, one of these requirements is that, before moving for a stay in the
Second Circuit, Defendant has unsuccessfully moved for a stay in this Court or can show that
such a motion would have been impracticable. The Court notes that this requirement applies
regardless of whether the Court treats the relevant proceeding as civil in nature because that is
the proceeding in which enforcement is sought (in which case Fed. R. Crim. P. 8[a] would
apply) or criminal in nature because that is the proceeding in which an appeal was taken (in
which case Fed. R. App. P. 8[c], would refer the Court to Fed. R. Crim. P. 38[c],[e], which
would in turn refer the Court back to Fed. R. App. P. 8[a]).
matters not directly involved in the appeal, including, here, the issuance of
orders with respect to the application for garnishment.
United States v. Kieffer, 08-CR-0054, 2010 WL 2231806, at *3-4 (D. N.D Apr. 28, 2010),
adopted by 2010 WL 2231804 (D. N.D. May 28, 2010).
ACCORDINGLY, it is
ORDERED that Magistrate Judge Dancks’ Report-Recommendation (Dkt. No. 13) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendant’s objection to the writ of garnishment (Dkt. No. 7) is
Dated: August 25, 2015
Syracuse, New York
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