United States District Court, E.D. Texas, Sherman Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
KFMBERLY C. PRIEST JOHNSON UNITED STATES MAGISTRATE JUDGE
2, 2019, the Court held a hearing (the “Hearing”)
and heard argument from the parties regarding, in part,
Defendant's Motion to Dismiss (Dkt. 262) and
Defendant's Motion to Suppress Evidence (Dkt. 265). The
Court will address each in turn.
Defendant's Motion to Dismiss (Dkt.
does not state an adequate legal basis for dismissal of the
case. Rather, Defendant merely raises four issues he argues
have harmed him. First, Defendant alleges the Government
violated its own internal processes regarding charges against
defense counsel. See Dkt. 262 at 5. The Government
responds that this allegation is unproven, but even if it
were proven, violations of internal Department of Justice
rules do not create enforceable rights for criminal
defendants, citing United States v. Cooks, 589 F.3d
173, 184 (5th Cir. 2009). See Dkt. 272 at 1-2.
Second, Defendant argues the Government collaborated with
Defendant's clients and third-party attorneys to
“create a crime that did not exist.” See
Dkt. 262 at 7. The Government responds that the Grand Jury
has delivered an indictment which states the crimes with
which the Defendant is charged and “details with
significant specificity a number of facts which support the
charges.” See Dkt. 272 at 4. Third, Defendant
asserts that the Government interfered with his right to an
attorney of his own choosing. See Dkt. 262 at 9. The
Government argued at the Hearing that the Government merely
advised the District Court of its concerns relating to
Defendant's counsel's lack of admission to practice
in the Eastern District of Texas. Notably, Defendant's
former counsel, Norman Silverman was, in fact, terminated
from this matter following the Government's advisement to
the District Court. Finally, Defendant alleges ongoing
discovery violations. See Dkt. 262 at 11.
Court does not find that any of Defendant's arguments
comprise an adequate legal basis for dismissal of this case,
and for the reasons stated on the record at the Hearing, the
Court recommends that the Motion to Dismiss be denied.
Defendant's Motion to Suppress Evidence (Dkt.
parties and the undersigned discussed the Motion to Suppress
at the Hearing. Defendant admitted that the Motion to
Suppress is based on his belief that the Government may have
been involved with the recording of Defendant on December 21,
2015, in La Picota prison in Columbia. At the Hearing, the
Government represented that neither the United States nor the
Columbian government requested or approved the described
recording in La Picota prison. Defendant also alleged that
the Government violated his rights under Title III of the
Omnibus Crime Control and Safe Streets Act of 1968, as
amended by the Electronic Communications Privacy Act of 1986
(18 U.S.C. § 2510, et seq.) by making recordings made at
the Collin County Jail. The Government responded that it did
not violate Defendant's rights, and further, that Title
III explicitly authorizes the recordings at issue.
See Dkt. 276 at 8-9.
Court stated at the Hearing that there appeared to be no
evidentiary basis for Defendant's assertions and beliefs
of improper Government involvement with any of the alleged
recordings. Defendant agreed with the Court's position
that the Motion should be denied at this time and stated that
Defendant would, instead, seek leave to file a motion to
suppress if further discovery demonstrated a sufficient basis
for the allegations made in the Motion.
foregoing reasons, the Court therefore recommends that
Defendant's Motion to Dismiss (Dkt. 262) be
Court further recommends that Defendant's Motion to
Suppress Evidence (Dkt. 265) be DENIED
fourteen (14) days after service of the magistrate
judge's report, any party may serve and file written
objections to the findings and recommendations of the
magistrate judge. 28 U.S.C.A. § 636(b)(1)(C).
is entitled to a de novo review by the district
court of the findings and conclusions contained in this
report only if specific objections are made, and failure to
timely file written objections to any proposed findings,
conclusions, and recommendations contained in this report
shall bar an aggrieved party from appellate review of those
factual findings and legal conclusions accepted by the
district court, except on grounds of plain error, provided
that the party has been served with notice that such
consequences will result from a failure to object. Id;
Thomas v. Arn, 474 U.S. 140, 148 (1985); Douglass v.
United Servs. Auto Ass'n, 79 F.3d 1415, 1417 (5th
Cir. 1996) (en banc), superseded by statute on other
grounds, 28 U.S.C. § 636(b)(1) (extending the time
to file objections from ten to fourteen days).