United States District Court, D. Nevada
JAMES C. MAHAN, District Judge.
Presently before the court are the report and recommendation of Magistrate Judge Ferenbach. (Doc. # 293). Defendant Frederick V. Williams filed an objection to the recommendation. (Doc. # 300). The government filed a response to plaintiff's objection. (Doc. # 303).
This matter involves the prosecution of defendant for fraudulently procuring United States passports, unemployment benefits, and Nevada identification cards. ( See, e.g., doc. # 293). Defendant filed a motion to dismiss arguing that the government's third superseding indictment is a product of prosecutorial vindictiveness and should be dismissed. ( See doc. # 256.)
In his report, Magistrate Judge Ferenbach recommended that defendant's motion to dismiss (doc. # 256) be denied. ( See doc. # 293). Magistrate Judge Ferenbach found that the defendant's argument failed first, as a matter of law, because defendant's entire argument rested on the procedural history of the action, and second, because there was no indirect or circumstantial evidence of vindictiveness. ( See id. )
Petitioner objected, arguing that Magistrate Judge Ferenbach ignored the totality of the circumstances. ( See doc. # 300). The government's response argued that defendant failed to raise any new issues in his objection to Magistrate Judge Ferenbach's report and recommendation. ( See doc. # 303).
This court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's report and recommendation, then the court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). Where a party fails to object, however, the court is not required to conduct "any review at all... of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149 (1985).
The court finds that Magistrate Judge Ferenbach did not err in finding that defendant's motion to dismiss should be denied. The court agrees that defendant provides no objective evidence of vindictiveness, nor any circumstantial evidence that remotely suggests the government acted improperly.
Therefore, after reviewing Magistrate Judge Ferenbach's report, defendant's objections, the government's response, and the underlying briefs de novo, the court adopts the report and recommendation in full.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the report and recommendation of Magistrate Judge Ferenbach (doc. # 293) regarding defendant Frederick V. Williams' motion to dismiss (doc. # 256) be, and the same hereby is, ADOPTED in its entirety.
IT IS FURTHER ORDERED that defendant Frederick V. Williams' motion to dismiss the government's third superseding indictment (doc. # 256) be, and the ...