United States District Court, E.D. Tennessee
MEMORANDUM OPINION AND ORDER
A. Varlan United States District Judge.
the prosecution of a pill-mill conspiracy. As the case
extended for years and law-enforcement personnel turned over,
many relevant patient records were destroyed by the Drug
Enforcement Agency. At issue is whether that destruction
violated defendant Sylvia Hofstetter's due-process right
to present a complete defense. United States Magistrate Judge
Debra C. Poplin issued a report and recommendation
(“R&R”), which urged the Court to deny
Hofstetter's motion to suppress and for an
adverse-inference jury instruction [Docs. 405, 410]. Before
the Court now are Hofstetter's objections to that R&R
[Doc. 485]. For the reasons that follow, Hofstetter's
objections will be overruled, and the R&R will be
accepted in full as the ruling of this Court.
Court reviews de novo those portions of a magistrate
judge's report and recommendation to which a party
objects, unless the objections are frivolous, conclusive, or
general. See 28 U.S.C. § 636(b)(1); Fed. R.
Crim. P. 59(b)(3); Smith v. Detroit Fed'n of
Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir.
1987); Mira v. Marshall, 806 F.2d 636, 637 (6th Cir.
1986). “The parties have ‘the duty to pinpoint
those portions of the magistrate's report that the
district court must specially consider.'”
Mira, 806 F.2d at 637 (quoting Nettles v.
Wainwright, 677 F.2d 404, 410 (5th Cir. 1982)). The
Court “may accept, reject, or modify, in whole or in
part, the findings or recommendations” of the
magistrate judge. 28 U.S.C. § 636(b)(1).
majority of Hofstetter's six pages of unnumbered
objections merely express general disagreement with Judge
Poplin's recommendations. But parties are not entitled to
such a “second bite at the apple, ” Senneff
v. Colvin, 2017 WL 710651, at *2 (E.D. Mich. 2017), and
district-court review is warranted only where objections are
specific, rather than general, see Mira v. Marshall,
806 F.2d 636, 637, 637 (6th Cir. 1986).
objections that are specific enough to deserve review are
essentially twofold. First, she argues that Magistrate Judge
Poplin incorrectly determined that the destroyed evidence was
not materially exculpatory. Second, she argues that the
purported violation of 42 C.F.R § 2.19 necessarily
demonstrates that the evidence was destroyed in bad faith.
Neither argument is persuasive.
first objection matters because it affects which legal
standard governs. The destruction of materially exculpatory
evidence violates a defendant's due-process right to
present a complete defense if the evidence “possess[es]
an exculpatory value that was apparent before the evidence
was destroyed, ” and if “the defendant would be
unable to obtain comparable evidence by other reasonably
available means.” California v. Trombetta, 467
U.S. 479, 489 (1984). For evidence that is merely
“potentially useful, ” however, a defendant must
“show bad faith on the part of the police.”
Arizona v. Youngblood, 488 U.S. 51, 58 (1988). The
Supreme Court in Youngblood rejected a rule that
would “impos[e] on the police an undifferentiated and
absolute duty to retain and to preserve all material that
might be of conceivable evidentiary significance in a
particular prosecution.” Id.
Judge Poplin correctly determined that the evidence at issue
here was not materially exculpable, and thus she correctly
analyzed this case under Youngblood.
Hofstetter's only argument to the contrary is based on a
police report that she concedes was never introduced into
evidence before Magistrate Judge Poplin [Doc. 485-1]. But
“absent compelling reasons, ” parties may not
“raise at the district court stage new arguments or
issues that were not presented to the magistrate.”
Murr v. United States, 200 F.3d 895, 902 n.1 (6th
Cir. 2000) (citing United States v. Waters, 158 F.3d
933, 936 (6th Cir. 1998)); see also Marshall v.
Chater, 75 F.3d 1421, 1426-27 (10th Cir. 1996)
(“[I]ssues raised for the first time in objections to
the magistrate judge's recommendation are deemed
waived.”). Argument based on this police report is
event, the cited police report does not show that the
destroyed evidence would have been exculpatory; it actually
suggests the opposite. It describes a patient who obtained an
MRI without an appointment from the back of a semi-truck for
$250 cash and then was immediately prescribed 156 Roxicodone
30 mg pills, Xanax, and a muscle relaxer after a doctor
briefly viewed his MRI [Doc. 485-1]. No. other treatments
were recommended, and the patient's oxycodone
prescription was increased on his second visit
[Id.]. According to Hofstetter, the fact that the
clinic required an MRI at all-combined with the clinic's
suggesting physical therapy on the patient's second visit
and requiring mobility, blood, and urine testing-shows that
the clinic was offering legitimate medical services [Doc.
485, at 3-4]. Hofstetter would have the Court conclude that
these facts show that “reasonable medical care was
being provided, ” and therefore “other charts
would have contained similar exculpatory information”
[Doc. 485, at 4], but she ignores the parts of the police
report that suggest the clinic's illegitimacy. At the
very least, there is quite a bit of doubt that the report
describes the operations of a legitimate medical practice.
Drawing the inference Hofstetter wants-that the 1, 900
destroyed patient records would have contained more of the
same-therefore does not establish that the destroyed evidence
would have been exculpatory.
these reasons, Hofstetter's first objection will be
overruled; Youngblood was correctly applied to this
second specific objection relates to bad faith under
Youngblood, but it is similarly unavailing. She
argues that the government per se destroyed the evidence in
bad faith by not complying with 42 C.F.R § 2.19. Even if
that requirement applies here, which the Court does not
address, Magistrate Judge Poplin correctly determined that
noncompliance does not show bad faith unless it stems from
ill will. The Sixth Circuit suggested as much in United
States v. Farmer, 289 Fed.Appx. 81 (6th Cir. 2008),
where it held that there was no due process violation when
police officers erased their radio communications under
routine department policy, despite a preservation order.
Id. at 86. The Court rejected defendant's
argument that “the government's failure to follow
the evidence-preservation order alone demonstrates bad faith,
” noting that “such a breach can stem from a
good-faith mistake as well as something more sinister.”
Id. So too here, and Hofstetter does not argue that
there was any ill will apart from this purported regulatory
violation. Her second objection will therefore be overruled.
reasons stated above, Hofstetter's objections are not
well taken and are hereby OVERRULED [Doc.
485]. The Court ACCEPTS the R&R in its
entirety [Doc. 474] and incorporates it into this memorandum
opinion and order. Accordingly, defendant Hofstetter's
motion to suppress and for an adverse-inference jury
instruction are DENIED [Docs. 405, 410].