United States District Court, D. Nevada
C. JONES UNITED STATES DISTRICT JUDGE.
jury has indicted Defendant James Scott Alva
(“Defendant”) on four criminal counts, for the
possession, receipt, transportation, and advertisement of
child pornography. (Indictment, ECF No. 1.) A jury trial is
presently set for October 30, 2017.
September 8, 2014, Defendant filed a motion to suppress
certain evidence of statements he made to Detective Lora Cody
of the Las Vegas Metropolitan Police Department while a
search of his home was being conducted. (ECF No. 20.) On
August 7, 2015, after holding an evidentiary hearing,
Magistrate Judge Nancy J. Koppe entered a Report and
Recommendation (“R. & R.”) that the motion to
suppress be denied. (R. & R., ECF No. 98.) On September
24, 2015, District Judge Gloria M. Navarro entered an order
accepting and adopting Judge Koppe's findings and
recommendation, having received no objection from Defendant.
(Order, ECF No. 100.) Accordingly, the motion was denied.
more than two years later, Defendant has filed objections to
the R. & R., citing Federal Rule of Criminal Procedure
59(b)(2), 28 U.S.C. § 636(b)(1)(A), and District of
Nevada Local Rule (“LR”) IB 3-1. (Mot. Recon.,
ECF No. 225.) Although the objections are untimely, the
Government stipulated to permit Defendant to file them, and
has filed a response addressing their merits. (Stipulation,
ECF No. 227; Resp., No. 226.)
statute and rules invoked by Defendant are inapposite. Under
28 U.S.C. § 636, it is clear that magistrate judges
cannot be delegated authority to make a final determination
on a motion to suppress evidence in a criminal case. 28
U.S.C. § 636(b)(1)(A). This is further clarified by LR
IB 1-4, which provides:
When a district judge refers to a magistrate judge a motion,
petition, or application that a magistrate judge may not
finally determine under 28 U.S.C. § 636 (b)(1)(B), the
magistrate judge must review it, conduct any necessary
evidentiary or other hearings, and file findings and
recommendations for disposition by the district judge.
Motions subject to this referral include, but are not limited
to: . . . (h) motions to suppress evidence in a criminal case
. . . .
Defendant attempts to state his objections under LR IB 3-1,
which is expressly applicable only to the “review of
matters that may be finally determined by a magistrate
judge.” Because the motion to suppress was decidedly
not a matter that Judge Koppe could finally determine, in no
case would the applicable rules permit the Court to review
objections to her R. & R. under LR IB 3-1.
if the objections were timely filed, they would fall under LR
IB 3-2, pertaining to the review of matters that may not be
finally determined by a magistrate judge. In contrast to LR
IB 3-1, which imposes a standard of review of “clearly
erroneous or contrary to law, ” see also 28
U.S.C. § 636(b)(1)(A), LR IB 3-2 requires the district
judge to conduct a de novo review of any portion of
the R. & R. to which a party has specifically objected,
see also 28 U.S.C. § 636(b)(1)(C). See
Calove v. Nationstar Mortg., LLC, No. 2:14-cv-01329,
2016 WL 3092111, at *2 (D. Nev. May 31, 2016) (Dorsey, J.),
aff'd, No. 16-16044, 2017 WL 4461086 (9th Cir.
Oct. 5, 2017) (“Local Rule IB 3-2(b) requires de
novo consideration of specific objections only.”).
Accordingly, were the Court to accept the very awkward timing
of Defendant's objections and analyze them under the
applicable standard, it would be required to conduct a de
novo review of the R. & R., after Judge Navarro has
already entered her final order accepting and adopting it.
Court is extremely reluctant to do this. Practically
speaking, the review Defendant seeks would not be a review of
Judge Koppe's R. & R., but rather a review of Judge
Navarro's final order. This type of review appears
plainly contrary to the applicable statute and rules. Under
28 U.S.C. § 636(b)(1)(C), a party may object to the
magistrate judge's proposed findings and recommendations
within fourteen days of being served with a copy of the R.
& R. If such objections are timely filed, the district
judge must review the findings and recommendations de
novo, to the extent they were specifically objected to,
and then enter an order accepting, rejecting, or modifying,
in whole or in part, the magistrate judge's findings and
recommendations. The language of the statute clearly
contemplates that any objections will, indeed must, be filed
before the district judge enters a final ruling on the R.
& R. And de novo review is only required if
specific, written objections are timely received by the
district judge. The case law is in accord with this
interpretation. See, e.g., Peretz v. United
States, 501 U.S. 923, 939 (1991) (internal quotation
marks omitted) (“[T]o the extent de novo review is
required to satisfy Article III concerns, it need not be
exercised unless requested by the parties.”);
United States v. Reyna-Tapia, 328 F.3d 1114, 1121
(9th Cir. 2003) (emphasis in original) (“The statute
makes it clear that the district judge must review the
magistrate judge's findings and recommendations de novo
if objection is made, but not otherwise.”);
Campbell v. U.S. Dist. Court for N. Dist. of
California, 501 F.2d 196, 206 (9th Cir. 1974) (“If
neither party contests the magistrate's proposed findings
of fact, the court may assume their correctness and decide
the motion on the applicable law.”); Newsom v.
All., No. C 09-5288 SBA, 2014 WL 985586, at *1 (N.D.
Cal. Mar. 7, 2014) (internal quotation marks omitted)
(“In the absence of a timely objection, the Court need
only satisfy itself that there is no clear error on the face
of the record in order to accept the recommendation.”).
despite the parties' stipulation, the Court cannot accept
Defendant's objections to the R. & R. Certainly, a
stipulation to extend the deadline to file such objections
could be granted under various circumstances, but not when
submitted after the district judge has already issued an
order on the magistrate judge's recommendation. The
defendant's right under the statute is to object to the
proposed findings and recommendations of the
magistrate judge. After the district judge adopts those
findings and recommendations, they are no longer proposed;
rather, they have become the final order of the court.
Accordingly, once the district judge's order is entered,
it is the order, and no longer the underlying R. & R.,
that must be challenged. The Court appreciates the fact that
Defendant's counsel was not involved in this case at the
time the R. & R. was filed, and is attempting to state
his objections now in order to preserve as many issues as
possible in the event of an appeal. However, the Court also
notes that despite Defendant's turbulent track record
with defense attorneys throughout the course of this matter,
Defendant was represented by counsel at the time his
objections to the R. & R. were due.
stage, the appropriate means for challenging the Court's
decision regarding the motion to suppress is a motion to
reconsider. Accordingly, the Court will construe
Defendant's objections as such. While the Federal Rules
of Criminal Procedure do not specifically allow for motions
to reconsider, many courts have reconsidered decisions made
in criminal cases. United States v. Hector,
368 F.Supp.2d 1060, 1062-63 (C.D. Cal. 2005) rev'd on
other grounds, 474 F.3d 1150 (9th Cir. 2007); see
also United States v. Fiorelli, 337 F.3d 282, 286 (3d
Cir. 2003) (motion for reconsideration allowed in criminal
case and governed by Fed.R.Civ.P. 59(e) or Fed.R.Civ.P.
60(b)). Courts have held that motions for reconsideration in
criminal cases are governed by the rules that govern
equivalent motions in civil proceedings. See Hector,
368 F.Supp.2d at 1063.
a motion to reconsider is an “extraordinary remedy, to
be used sparingly in the interests of finality and
conservation of judicial resources.” Carroll v.
Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (quoting 12
James Wm. Moore et al., Moore's Federal Practice §
59.30 (3d ed. 2000)). “Reconsideration is
appropriate if the district court (1) is presented with newly
discovered evidence, (2) committed clear error or the initial
decision was manifestly unjust, or (3) if there is an
intervening change in controlling law.” Sch. Dist.
No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d
1255, 1263 (9th Cir. 1993). In some cases, “other,
highly unusual, circumstances” may also warrant
a motion to reconsider “may not be used to raise
arguments or present evidence for the first time when they
could reasonably have been raised earlier in the
litigation.” Carroll, 342 F.3d at 945; see
also United States v. Lopez-Cruz, 730 F.3d 803, 811-12
(9th Cir. 2013). Moreover, “[a] motion to reconsider is
not a second chance for the losing party to make its
strongest case or to dress up arguments that previously
failed.” United States v. Huff, 782 F.3d 1221,