United States District Court, W.D. Tennessee, Western Division
ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT
AND RECOMMENDATION AND ORDER AFFIRMING THE
MAGISTRATE JUDGE'S ORDER
T. Fowlkes, Jr. United States District Judge.
the Court is Defendant's Appeal and Objections to the
Magistrate Judge's Order Denying Defendant's Motion
to Suppress Evidence of Other Acts and Motion for Notice of
Evidence of Prior Acts filed October 10, 2016. (ECF Nos. 29
& 30). The Court referred Defendant's motions to the
Magistrate Judge on August 10, 2016. (ECF No. 22). The
Magistrate Judge issued a Report and Recommendation on the
Defendant's Motion to Suppress Evidence of Other Acts and
entered an Order denying the Defendant's Motion for
Notice of Evidence of Prior Acts on September 26, 2016. (ECF
Nos. 27 & 28). Defendant filed an appeal to the
Magistrate Judge's Order and objections to the Magistrate
Judge's Report and Recommendation on October 10, 2016.
(ECF Nos. 29 & 30).
reviewing the Magistrate Judge's Order, the Magistrate
Judge's Report and Recommendation, and Defendant's
appeal and objections, the Court finds that the Report and
Recommendation should be adopted and the Magistrate
Judge's Order should be affirmed.
purposes of this review, the Magistrate Judge accurately
summarized the facts of this case. In pertinent part, this
case involves the use of false statements regarding
Defendant's income and employment for purposes of
obtaining loans or credit from various financial
institutions. (ECF No. 27). While Defendant has filed an
appeal of the Magistrate Judge's order and objections to
the Magistrate Judge's Report and Recommendation, none of
the appellate claims or objections appear to specifically
relate to the Magistrate Judge's factual findings.
Therefore, the Court adopts the factual findings of the
report and recommendation.
district court has the authority to refer certain pre-trial
matters to a magistrate judge for resolution. 28 U.S.C.
§ 636(b); Callier v. Gray, 167 F.3d 977, 980
(6th Cir. 1999). These referrals may include non-dispositive
pretrial matters, such as a motion to compel or a motion for
a protective order concerning discovery. 28 U.S.C. §
636(b)(1)(A). The district court has appellate jurisdiction
over any decisions the magistrate judge issues pursuant to
such a referral. Fed.R.Civ.P. 72. The referrals may also
include dispositive matters such as a motion for summary
judgment or a motion for injunctive relief. 28 U.S.C. §
636(b)(1)(B). When a dispositive matter is referred, the
magistrate judge's duty is to issue proposed findings of
fact and recommendations for disposition, which the district
court may adopt or not. “The district judge may accept,
reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate
judge with instructions.” Fed.R.Civ.P. 72(b)(3).
standard of review that is applied by the district court
depends on the nature of the matter considered by the
magistrate judge. If the magistrate judge issues a
non-dispositive pretrial order, the district court should
defer to that order unless it is “found to be clearly
erroneous or contrary to law.” 28 U.S.C. §
636(b)(1)(A); Fed.R.Civ.P. 72(a). However, if the magistrate
judge order was issued in response to a dispositive motion,
the district court should engage in de novo review
of all portions of the order to which specific written
objections have been made. 28 U.S.C. § 636(b)(1)(A);
Fed.R.Civ.P. 72(a); Baker v. Peterson, 67 Fed.
App'x. 308, 311, 2003 WL 21321184 *2 (6th Cir. 2003)
(“A district court normally applies a ‘clearly
erroneous or contrary to law' standard of review for
non[-]dispositive preliminary measures. A district court must
review dispositive motions under the de novo
clearly erroneous standard applies only to factual findings
made by the Magistrate Judge, while [her] legal conclusions
will be reviewed under the more lenient contrary to law
standard.” E.E.O.C. v. Burlington N. & Santa Fe
Ry. Co., 621 F.Supp.2d 603, 605 (W.D. Tenn. 2009)
(quotation omitted). Under the clearly erroneous standard for
findings of fact, the Court need only consider whether any
evidence or showing exists to support the Magistrate
Judge's finding and whether the finding was reasonable.
Tri-Star Airlines, Inc. v. Willis Careen Corp. of Los
Angeles, 75 F.Supp.2d 835, 839 (W.D. Tenn. 1999)
(citations omitted). “When examining legal conclusions
under the contrary to law standard, the Court may overturn
any conclusions of law which contradict or ignore applicable
precepts of law, as found in the Constitution, statutes, or
case precedent.” Doe v. Aramark Educ. Res.,
Inc., 206 F.R.D. 459, 461 (M.D. Tenn. 2002) (citing
Gandee v. Glaser, 785 F.Supp. 684, 686 (S.D. Ohio
1992), aff'd, 19 F.3d 1432 (6th Cir. 1994)
(internal quotation marks omitted)).
Magistrate Judge's Report and
is charged with wire fraud affecting a financial institution
in violation of 18 U.S.C. § 1343. The elements of wire
fraud are: 1) a scheme to defraud; 2) use of an interstate
wire communication in furtherance of the scheme; and 3)
intent to deprive a victim of money or property. See
United States v. Prince, 214 F.3d 740, 747-48 (6th Cir.
2000). The Magistrate Judge recommended that Defendant's
Motion to Exclude Evidence of Other Acts be denied on the
basis that the challenged evidence is proper background
evidence and intrinsic to the wire fraud charge. Defendant
objects to the Magistrate Judge's finding and argues that
the prior acts are not background evidence to the single wire
fraud charge. Defendant further asserts that the prior acts
are extrinsic evidence, clearly showing prohibited propensity
to commit unrelated crimes. Also, Defendant argues that the
cases that the Magistrate Judge relied on are readily
distinguishable from his circumstances.
Civ. P. 404(b) requires the exclusion of other-acts evidence
used for no purpose other than to suggest a party's
action in conformity with such prior acts. United States
v. Lamar, 466 F. App'x 495, 499 (6th Cir. 2012)
(citation omitted). The Sixth Circuit has “held time
and again, however, that background evidence, ‘often
referred to as ‘res gestae, ' does not
implicate Rule 404(b)'” Id. (citing
United States v. Hardy, 228 F.3d 745, 748 (6th Cir.
2000). In Lamar, the court affirmed the district
court's admission of the defendant's prior bad acts
of selling marijuana as background evidence for explaining
the context and network of existing relationships in which
the defendant conspired to distribute cocaine.
United States v. Weinstock, 153 F.3d 272 (6th Cir.
1998), the Sixth Circuit affirmed the district court's
admission of the defendant's prior bad acts as part of
his pattern of medical ...