United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE.
pending before the Court is a Motion To Compel (Doc. 25)
filed by Defendant CLIFTON JORDAN. Defendant DERRICK JOHNSON
has joined in that motion. (Doc. 30; docket entry Order dated
6/9/2017). Defendant DERRICK JOHNSON has also filed a
supplement to the motion. (See doc. 37, docketed as a pending
motion). The Government has filed a unified response (Doc.
47) to the motion as supplemented. On July 10, 2017,
Magistrate Judge Herman N. Johnson, Jr. entered an Order
(Doc. 63) denying in part and otherwise finding moot the
motion as supplemented.
25, 2017, both Defendants jointly filed “Rule 59(a)
Objections To Portions of the Magistrate Judge's
Order.” (Doc. 68). The United States has responded.
(Doc. 71). For the reasons stated below, the Court finds that
the Objections are due to be, and hereby are,
Standard of Review
Supreme Court has found that a district court may
“review in whole, ” “[review] in part anew,
” or “wholly  ignore” a magistrate
judge's order. Mathews v. Weber, 423 U.S. 261,
263 (1976). “The authority and the responsibility to
make an informed, final determination, [the Supreme Court]
emphasize[s], remains with the [district] judge.”
Id. at 271. The district court retains total control
and jurisdiction over “the entire process.”
United States v. Raddatz, 447 U.S. 667, 681 (1980);
see also Webb v. Califano, 468 F.Supp. 825, 830
(E.D. Cal. 1979) (“[T]he district court must
give a de novo review when timely objections are
filed....” (emphasis added)).
“[n]either the Constitution nor the statute requires a
district judge to review, de novo, findings and
recommendations that the parties themselves accept as
correct.” United States v. Woodard, 387 F.3d
1329, 1334 (11th Cir. 2004) (internal quotation marks
omitted) (quoting United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003)). It is incumbent upon the
parties to timely raise any objections that they may have
regarding a magistrate judge's findings contained in a
report and recommendation, as the failure to do so
subsequently waives or abandons the issue, even if such
matter was presented at the magistrate judge level.
See, e.g., United States v.
Pilati, 627 F.3d 1360, 1365 (11th Cir. 2010)
(“While Pilati raised the issue of not being convicted
of a qualifying offense before the magistrate judge, he did
not raise this issue in his appeal to the district court.
Thus, this argument has been waived or abandoned by his
failure to raise it on appeal to the district court.”).
However, the district judge has discretion to consider
or to decline to consider arguments that were not
raised before the magistrate judge. Stephens v.
Tolbert, 471 F.3d 1173, 1176 (11th Cir. 2006); see
also Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir.
2009) (“Thus, we answer the question left open in
Stephens and hold that a district court has
discretion to decline to consider a party's argument when
that argument was not first presented to the magistrate
filing objections must specifically identify those findings
objected to. Frivolous, conclusive or general objections need
not be considered by the district court.” Nettles
v. Wainwright, 677 F.2d 404, 410 n.8 (5th Cir.
1982).“This rule facilitates the
opportunity for district judges to spend more time on matters
actually contested and produces a result compatible with the
purposes of the Magistrates Act.” Id. at 410.
Indeed, a contrary rule “would effectively nullify the
magistrate judge's consideration of the matter and would
not help to relieve the workload of the district
court.” Williams, 557 F.3d at 1292 (internal
quotation marks omitted) (quoting United States v.
Howell, 231 F.3d 615, 622 (9th Cir. 2000)).
specifically limit their Objections to “defense
requests 3 through 6 (Doc. 25, at 6-7) as denied by the
magistrate's order. (Doc. 63, at 4-5).” (Doc 68 at
1, fn.1). As Objections, Defendants state that the Order is
“contrary to law and/or clearly erroneous in that the
Order fails to address the fundamental due process aspects of
Jordan's original motion. As such, [the Defendants]
object to and request [that] this Honorable Court
‘modify' and/or ‘set aside' the
Magistrate's Order as to the portions of the Order
dealing with defense requests 3 through 6. (Doc. 25, at
6-7).” (Doc. 68 at 1-2). Those “due process
concerns” are later identified as those arising under
the Fifth and Sixth Amendments to the United States
Constitution. Specifically, they state:
In his original motion Jordan stated that the motion to
compel was made “pursuant to the Fifth and Sixth
Amendments to the Constitution of the United States of
America and Brady, Giglio, Kyles and its
progeny” and that the requests were made “so that
the defense can adequately investigate and defend this
matter.” As such, the requests herein were made with
Fifth and Sixth Amendment due process concerns in mind.
(Id. at 5) (internal citation omitted).
Defendants provide more particularity in section III. of
their Objections, where they criticize the “[t]he
magistrate's order [because it] focuses exclusive[ly] on
the exculpatory nature of the material requested. (Doc. 63,
at 4-5).” (Id. at 6). Although the Defendants
continue with their argument that exculpatory information
would be uncovered with disclosure of the information
requested [they also assert as valid] ... the remaining
rationale for current disclosure is so that the defendants
may effectively assert their rights to present a defense,
investigate the allegations, to compel the attendance of
witnesses and to present witnesses on the defendant's
(Id. at 6 fn. 6).
state that the material requested:
1. [C]ould [help the defense] try to determine the
involvement of others [who are referred to in Government
documents produced to date only by nicknames] in and their
expectation of the intended disposition of their drugs and
how it was accomplished [thereby] lead[ing] the defense to
determine whether either [of those individuals] were [sic]
suspicious about whether their shipment had been interdicted
and what steps they took to insulate themselves and to
protect their own interests.
2. [If the defense knew the identities of the people
identified to date only by nicknames, those individuals]
could assist the defense in finding out how Derrick Johnson
came to be in possession of the car, etc. .... [sic] as well
as whether that circumstance was done innocently or with
guilty knowledge [on the part of Derrick Johnson] ... [or
with Mr. Johnson having been] told that the car contained
some but a lesser amount of cocaine that the 14 kilos which
would have a substantial impact on sentencing for both
3. [If the defense knew the identities of the people who have
been identified to date only by nicknames] [i]t is also very
likely that neither of these two individuals could identify
Mr. Jordan [and the defense would be able to learn this].
(Id. at 6-7).