Opinion
2:09-cr-00443-KJD-LRL.
August 19, 2010.
Roger Yang, U.S. Attorney's Office, Las Vegas, NV, for Plaintiff.
Rene Valladares, Federal Public Defender, Las Vegas, NV, for Defendant.
ORDER
Currently before the Court is Defendant's Motion to Suppress Involuntary Statements (#18). The Government filed a Response (#20), to which Defendant filed a Reply (#23). The Magistrate Judge issued a Report and Recommendation (#42) on Defendant's Motion, recommending that the Court deny Plaintiff's Motion to Suppress. Defendant filed Objections (#46) to the Magistrate Judge's Report and Recommendation, to which the Government filed a Response (#48).
Additionally before the Court is Defendant's Supplemental Motion to Suppress (#28). The Government filed a Response (#30), to which Defendant filed a Reply (#31). The Magistrate Judge issued a Report and Recommendation (#38), recommending that the Court deny the Supplementary Motion to Dismiss. Defendant filed Objections (#39) to the Magistrate Judge's Report and Recommendation, to which the Government filed a Response (#40).
Also before the Court is Defendant's Motion to Dismiss Count Two of the Indictment (#13). The Government filed a Response (#19), to which Plaintiff filed a Reply (#24). The American Civil Liberties Union ("ACLU") also filed a brief in Reply (#25) as amicus curaie, on behalf of Plaintiff. The Magistrate Judge issued a Report and Recommendation (#41), to which Plaintiff filed Objections (#50). The Government filed a Response (#51), to which Plaintiff filed a Reply (#54). Additionally, before the Court is the Notice of Ninth Circuit Case (#58), and Supplemental Memorandum (#60) filed by the Government, and Defendant's Supplement (#59).
The Court has considered each Motion, Response, Reply, and the amicus brief, together with the Magistrate Judge's Reports and Recommendations, Defendant's Objections, Responses, Reply, and all supplemental information and conducted a de novo review of the record in this case in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Rule IB 1-4. De novo review means the court must consider the matter anew, the same as if it had not been heard before and as if no decision previously had been rendered. Ness v. Commissioner, 954 F.2d 1495, 1497 (9th Cir. 1992). Thus, although the Court need not hold a de novo hearing, the Court's obligation is to arrive at its own independent conclusion about those portions of the Magistrate Judge's Report and Recommendation to which objections have been made. United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989).
Having read and considered the foregoing, and having conducted a de novo review, the Court determines that the Magistrate Judge's Report and Recommendations (## 42, 38, 41) are accepted and adopted in whole. Particularly, the Court finds that the facts and issues presented in this case are distinguishable from the facts and issues involved in the recent Ninth Circuit decision in U.S. v. Xavier Alvarez, No. 08-50345 2010 WL 3222192 (9th Cir. August 17, 2010). Specifically, the Alvarez decision addresses the constitutionality of sections (b) and (c) of the Stolen Valor Act, 18 U.S.C. § 704, which impose criminal penalty "for the mere utterance or writing" of what is or may be perceived as a representation that an individual has been awarded a military decoration or service medal. (Id., at *1). The Defendant in this case however, was indicted under sections (a) and (d) of the Statute, for the unauthorized wearing or use of a military or service medal-which was not addressed by the Ninth Circuit inAlvarez.
Accordingly, IT IS HEREBY ORDERED that Defendant's Motion to Suppress Involuntary Statements (#18), Defendant's Supplemental Motion to Suppress (#28), and Defendant's Motion to Dismiss Count Two of the Indictment (#13) are DENIED. IT IS FURTHER ORDERED that the Magistrate Judge's Report and Recommendations (## 42, 38, 41) are accepted and adopted in whole.
IT IS FURTHER ORDERED that Plaintiff's Objections to the Magistrate Judge's Report and Recommendation (#46, 39, 50) are DENIED.