Opinion
10-CR-6172 CJS.
April 27, 2011
DECISION and ORDER
This case was referred by order of the undersigned, dated August 31, 2010, to Magistrate Judge Marian W. Payson, pursuant to 28 U.S.C. § 636(b)(1)(A)-(B). Defendant filed an omnibus pretrial motion seeking, inter alia, an order dismissing the one count indictment as duplicitous, an order striking DNA collection pursuant to 42 U.S.C. § 14135a(a)(1)(A) and C.F.R. § 28.12(b) as unconstitutional, and an order requiring the government to provide a bill of particulars. On February 14, 2011, Magistrate Judge Payson filed a Report and Recommendation ("R R") (#19) recommending that the Court deny defendant's motion to dismiss the indictment as duplicitous, as well as her application to strike DNA collection as unconstitutional, and her application for a bill of particulars. Defendant timely filed objections (# 22) to the R R on March 28, 2011.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the R R to which objections have been made. Upon a de novo review of the R R and after considering the defendant's objections, the Court accepts the proposed findings and recommendation.
Accordingly, for the reasons set forth in Magistrate Judge Payson's R R (#19), the defendant's motion (#10) to dismiss the indictment as duplicitous, her motion to strike DNA collection as unconstitutional, and her motion for a bill of particulars are denied.
As to the DNA sample, the court notes that United v. Ruben Mitchell, 681 F. Supp. 2d 597 (W.D. Pa. 2009), upon which the defendant relies, is currently on appeal to the Third Circuit under Docket # 09-4718. A Third Circuit panel heard oral argument on March 25, 2010, and on October 20, 2010, Chief Judge McKee of the Third Circuit ordered that the case be heard en banc at the convenience of the Court. Subsequent to this order, the en banc argument took place on February 23, 2011. An examination of the Third Circuit docket shows that several amicus curiae briefs have been filed in this case. On March 7, 2011, at the direction of the Court, the Clerk of the Third Circuit issued a letter to all counsel, asking whether the challenge to the statute, 42 U.S.C. § 14135a(a)(1)(A), and regulation, 28 C.F.R. § 28.12, as presented and ruled upon by the District Court and as presented to the Third Circuit, was a facial challenge, an as-applied challenge, or both. Mitchell's counsel was directed, and amicus counsel favoring his position were invited, to respond by March 14, 2011. The government was given until March 25, 2011 to file an answer. One amicus counsel, the Federal Public Defender's Office for the Western District of Pennsylvania, obtained a two week extension of the deadline, and filed its response on March 28, 2011. However, Mitchell's counsel failed to comply with the Third Circuit's direction, and on April 21, 2011, a further order was issued giving Mitchell's counsel until April 28, 2011 to file a response or show cause why he should not be sanctioned for failing to do so.
IT IS SO ORDERED.