Opinion
4:23-CV-64-CDL-MSH 28 U.S.C. § 2241
01-05-2024
S.C., Petitioner, v. Warden, STEWART DETENTION CENTER, Respondent.
ORDER AND RECOMMENDATION
STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (ECF No. 1) and Respondent's motion to dismiss the application (ECF No. 14). For the reasons explained below, it is recommended that Respondent's motion to dismiss be granted. Also pending is Petitioner's motion for preliminary injunction (ECF No. 8), which the Court recommends be denied as moot.
BACKGROUND
Petitioner, a native and citizen of Jamaica, was initially admitted into the United States on October 28, 2014, pursuant to a B2 temporary visitor visa, and later gained lawful permanent residency.Scolnick Decl. ¶ 4, ECF No. 6-1; Scolnick Ex. A, at 3, ECF No. 62. On August 28, 2017, Petitioner was convicted in the United States District Court for the Middle District of Florida of conspiracy to import and to possess with intent to distribute five or more kilograms of cocaine and one hundred or more kilograms of marijuana and was sentenced to 60 months' imprisonment followed by 36 months of supervised release. Scolnick Decl. ¶ 5; Scolnick Ex. B, at 2-4, ECF No. 6-3. On July 30, 2021, while Petitioner was incarcerated at McRae Federal Correctional Institute, the Department of Homeland Security (“DHS”) served him with a notice to appear (“NTA”) before an immigration judge (“IJ”), charging him with removability under 8 U.S.C. § 1227(a)(2)(A)(iii) based on his conviction for an aggravated felony. Scolnick Decl. ¶ 6; Scolnick Ex. C, at 2-3, 5, ECF No. 6-4. Petitioner applied for asylum, and a merits hearing was held before an IJ via video conference on January 21, 2022. Scolnick Decl. ¶ 7. The IJ denied Petitioner's asylum application, sustained the charge of removability, and ordered Petitioner's removal. Id.; Scolnick Ex. D, at 2-3, ECF No. 6-5. On February 16, 2022, Petitioner timely appealed the IJ's removal order to the Board of Immigration Appeals (“BIA”), and the BIA dismissed his appeal on June 7, 2022, making his removal order final that day. Scolnick Decl. ¶ 9; Scolnick Ex. E, at 4-7, ECF No. 6-6; see 8 C.F.R. § 1241.1(a).
Because all documents have been electronically filed, this Order and Recommendation cites to the record by using the document number and electronic screen page number shown at the top of each page by the Court's CM/ECF software.
Petitioner first entered United States Immigration and Customs Enforcement (“ICE”) custody on February 14, 2022, and he has remained detained since that time. Scolnick Decl. ¶ 8. ICE Enforcement and Removal Operations (“ERO”) requested a travel document from the Jamaican consulate on June 24, 2022. Scolnick Decl. ¶ 11. On July 6, 2022, however, Petitioner filed a Petition for Review (“PFR”) with the United States Court of Appeals for the Eleventh Circuit. Scolnick Decl. ¶ 13. He also filed an emergency motion to stay his removal, which the Eleventh Circuit denied on July 25, 2022. Id.; Scolnick Ex. F, at 2, ECF No. 6-7. On April 3, 2023, the Jamaican consulate informed ERO that it could not issue a travel document because of Petitioner's pending PFR. Scolnick Decl. ¶ 20. On August 31, 2023, upon motion of the Government, the Eleventh Circuit remanded Petitioner's case back to the BIA. Scolnick Suppl. Decl. ¶ 4, ECF No. 14-1; Scolnick Suppl. Ex. A, at 4-5, ECF No. 14-2.
There are numerous factual disputes between the parties, including whether Petitioner refused to participate in interviews with the Jamaican consulate or otherwise obstructed his removal. Resp't's Reply 5, ECF No. 19; Pet. 3, ECF No. 1; Pet'r's Reply to Pet. 2, ECF No. 7. If resolving these factual disputes was necessary, the Court would be required to hold an evidentiary hearing and possibly appoint counsel. See Singh v. U.S. Att'y Gen., 945 F.3d 1310, 1315 (11th Cir. 2019) (“It is well-established that a court may not decide a habeas corpus petition based on affidavits alone when there are factually contested issues.”). However, because-as discussed herein-the Court finds the Government has at all times reasonably sought to facilitate Petitioner's deportation, the Court need not resolve these factual disputes to determine Petitioner is not entitled to habeas relief. For similar reasons the Court need not address Respondent's contention that Petitioner's pursuit of a PFR with the Eleventh Circuit was frivolous, though the Court cannot conceive of the Government ultimately agreeing to a remand of his case if it deemed his claims frivolous.
The Court received Petitioner's application for habeas relief on April 14, 2023 (ECF No. 1). On September 21, 2023, Respondent moved to dismiss Petitioner's habeas petition (ECF No. 14). Petitioner timely responded in opposition to the motion (ECF No. 16). Respondent filed a reply on November 6, 2023 (ECF No. 19). On November 8, 2023, the Court issued an Order and Recommendation (“O&R”) (ECF No. 20), recommending denial of Respondent's motion to dismiss and grant of Petitioner's petition in part and denial in part (ECF No. 20). On November 21, 2023, Respondent objected to the Court's recommendation (ECF No. 22). On December 15, 2023, the District Judge, without either overruling or sustaining Respondent's objection, remanded the case back to the undersigned with “direction that he reconsider this matter and provide a supplemental report either affirming, vacating, or modifying his previous Recommendation.” Order 4, ECF No. 26. The District Judge also emphasized that the Court could only find Petitioner's constitutional rights to have been violated if the record “establish[es] that his prolonged detention without a bond hearing was not done in order to reasonably facilitate deportation.” Id. at 3. The Court also directed that such a finding could be reached only if the record was “without evidence of reasonable efforts to facilitate deportation.” Id. at 4 n. 4.
In response to the District Judge's order, the undersigned ordered Respondent to supplement the record with documents explaining why DHS moved to remand Petitioner's case back to the BIA. Text-Only Order, Dec. 18, 2023, ECF No. 27. On December 26, 2023, Respondent supplemented the record with a copy of Petitioner's brief to the Eleventh Circuit and DHS's motion for remand (ECF Nos. 28, 28-1, 28-2).
DISCUSSION
When Petitioner filed his petition, he alleged his “prolonged Immigration Detention” violated his Fifth Amendment due process rights. Pet. 1, ECF No. 1. At the time, he was detained pursuant to 8 U.S.C. § 1231(a), which applies to aliens under a final removal order and awaiting deportation. Accordingly, Petitioner's application appropriately relied on Zadvydas v. Davis, wherein the United States Supreme Court read an implicit six-month presumptively reasonable detention period into § 1231(a) and required an alien's release after this period if he or she established there was no significant likelihood of removal in the reasonably foreseeable future. 533 U.S. 678, 689, 699-701 (2001). This analysis was specifically crafted to avoid a Fifth Amendment Due Process Clause violation for aliens detained under § 1231(a), which by its explicit terms does not limit the length of their detention. Zadvydas, 533 U.S. at 689-90. Upon remand of his immigration case back to the BIA, however, Petitioner's removal order was no longer final, and authorization for his detention shifted from § 1231(a) to 8 U.S.C. § 1226(c), which applies to criminal aliens held pre-final removal order. See Bonilla v. Lynch, 840 F.3d 575, 589 (9th Cir. 2016) (holding that if a final order of removal is vacated, the alien is restored to his pre-final order of removal status). Nevertheless, the shift from § 1231(a) to § 1226(c) detention did not moot Petitioner's Fifth Amendment challenge to prolonged detention but simply altered the framework under which it is to be analyzed.
In analyzing a due process challenge to § 1226(c) detention, the seminal case is Demore v Kim, 538 U.S. 510 (2003). In Demore, the Supreme Court addressed a due process challenge to mandatory detention under § 1226(c). 538 U.S. at 514. Pertinent to this case, the petitioner's challenge in Demore was not to the constitutionality of prolonged detention under § 1226(c) but to the constitutionality of any period of mandatory detention under the statute. See id. at 514, 522-23 (noting the petitioner's habeas petition “challeng[ed] the constitutionality of § 1226(c) itself” and “argued that the Government may not, consistent with the Due Process Clause of the Fifth Amendment, detain him for the brief period necessary for his removal proceedings”). Relying on Zadvydas, lower courts had concluded that the statute was unconstitutional as applied to lawful permanent residents because the Government “had not provided a justification ‘for no-bail civil detention sufficient to overcome a lawful permanent resident alien's liberty interest.'” Id. at 515 (quoting Kim v. Ziglar, 276 F.3d 523, 535 (9th Cir. 2002)).
In overruling those lower courts, the Supreme Court discussed the legislative history behind the enactment of § 1226(c). It noted that “Congress adopted this provision against a backdrop of wholesale failure by the INS to deal with increasing rates of criminal activity by aliens.” Id. at 518. The Court cited findings that “[c]riminal aliens were the fastest growing segment of the federal prison population, already constituting roughly 25% of all federal prisoners, and they formed a rapidly rising share of state prison populations as well.” Id. In 1990, it cost $724 million to confine criminal aliens. Id. Further, the Court observed that “deportable criminal aliens who remained in the United States often committed more crimes before being removed,” with one study showing “77% were arrested at least once more and 45%-nearly half-were arrested multiple times before their deportation proceedings even began.” Demore, 538 U.S. at 518. Studies showed that it would take 23 years at the then-current rate of deportation to remove every criminal alien subject to deportation, and one major cause was INS's failure to detain them during deportation proceedings. Id. at 518, 519. While the Attorney General had “broad discretion” regarding bond, “severe limitations on funding and detention space” meant that “in practice,” release decisions were affected by considerations other than flight risk or dangerousness. Id. at 519. Finally, more than 20% of deportable criminal aliens who were released did not appear for their removal hearings. Id.
After discussing this background, the Court observed that “[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.” Id. at 521 (quoting Mathews v. Diaz, 426 U.S. 67, 79-80, (1976)). Further, the Court noted that it had long “recognized detention during deportation proceedings as a constitutionally valid aspect of the deportation process.” Id. at 523. Finally, the Court rejected the argument that such detention was contingent on a finding the alien was a flight risk or danger to the community. Demore, 538 U.S. at 524-25.
The Court then explained why the lower courts' reliance on Zadvydas was misplaced, noting two material differences between that case and the one before it. First, the Court highlighted that aliens entitled to release under Zadvydas were required to show their removal was “no longer practically obtainable,” thus demonstrating detention under § 1231(a) no longer bore “a reasonable relation to the purpose” of such detention, i.e. effectuating the alien's removal. Id. at 527; see Zadvydas, 533 U.S. at 697 (noting § 1231(a) “has as its basic purpose effectuating an alien's removal”). In contrast, the Court noted, detention under § 1226(c) “necessarily serves the purpose of preventing deportable criminal aliens from fleeing prior to or during their removal proceedings, thus increasing the chance that, if ordered removed, the aliens will be successfully removed.” Demore, 538 U.S. at 527-28.
Second, the Court distinguished Zadvydas on the basis that while “the period of detention at issue in Zadvydas was ‘indefinite' and ‘potentially permanent,' the detention here is of a much shorter duration.” Id. at 528 (quoting Zadvydas, 533 U.S. at 690-91). The Court observed that “in the majority of cases,” § 1226(c) detention lasted “less than the 90 days [the Court] considered presumptively valid in Zadvydas.” Id. at 529. The Court also cited statistics showing that “in 85% of the cases in which aliens are detained pursuant to § 1226(c), removal proceedings are completed in an average time of 47 days and a median of 30 days” and that “[i]n the remaining 15% of cases, in which the alien appeals the decision [to the BIA], appeal takes an average of four months, with a median time that is slightly shorter.” Id. Thus, the Court held that “[d]etention during removal proceedings is a constitutionally permissible part of that process.” Id. at 531.
Left unresolved by Demore was whether a § 1226(c) detainee could assert an as-applied due process claim to prolonged detention without a bond hearing. As referenced above, this was not a claim raised in Demore, where the challenge was to any period of mandatory detention without a bond hearing, even the “brief period necessary for [an alien's] removal proceedings.” Id. at 522-23. However, the issue was addressed by the Eleventh Circuit in Sopo v. United States Attorney General, 825 F.3d 1199 (11th Cir. 2016), vacated on other grounds, 890 F.3d 952 (11th Cir. 2018). Citing Zadvydas, the Eleventh Circuit applied the doctrine of constitutional avoidance to conclude there is an implicit temporal limitation against unreasonably prolonged detention without a bond hearing of § 1226(c) detainees. Sopo, 825 F.3d at 1213-14. However, in determining whether a criminal alien's due process rights have been violated, the Court rejected a bright-line rule like Zadvydas supplied, and instead adopted a case-by-case approach for district courts to follow, noting that “reasonableness, by its very nature, is a fact-dependent inquiry requiring an assessment of all circumstances of any given case.” Id. at 1215 (quotation marks omitted).
Sopo identified five factors for district courts to consider. Id. at 1217-18. The first-which the Court labeled a “critical factor”-was the length of detention, with the Court suggesting that “a criminal alien's detention without a bond hearing may often become unreasonable by the one-year mark, depending on the facts of the case.” Id. at 1217. The second factor was a consideration of “why the removal proceedings have become protracted.” Id. at 1218. The Court also identified three other factors: whether removal of the criminal alien would be possible once a removal order became final, whether the civil detention period exceeded the time the alien spent in prison for the crime rendering him removable, and whether the facility where he was detained was “meaningfully different from a penal institution for criminal detention.” Id. at 1218. Finally, the Court stated its list was “not exhaustive” and that the factors to be considered would vary depending on the facts of each case. Sopo, 825 F.3d at 1218.
In Jennings v. Rodriguez, though, the Supreme Court rejected Sopo's application of the canon of constitutional avoidance to read an implicit temporal limitation into § 1226(c) detention. 583 U.S. 281, 296-97 (2018). Instead, the Supreme Court interpreted § 1226(c) to provide an explicit limit to the length of detention, which it identified as being the “conclusion of removal proceedings.” Id. at 304. The Supreme Court, however, explicitly declined to address the § 1226(c) detainees' constitutional due process challenges and remanded them to the lower court. Jennings, 583 U.S. 312. Thus, while Jennings concluded § 1226(c) authorized prolonged detention without a bond hearing, it did not answer whether an alien could assert an as-applied due process challenge to prolonged detention without a bond hearing.
Although Sopo was vacated and its constitutional avoidance rationale rejected by the Supreme Court in Jennings, most district courts in the Eleventh Circuit, including this one, have cited it as persuasive authority on due process claims for prolonged detention. See, e.g., K.O.S. v. Warden, Stewart Det. Ctr., No. 4:21-cv-118-CDL-MSH, slip op. at 5 (M.D. Ga. Oct. 12, 2021), ECF No. 19, recommendation adopted by Order, Nov. 12, 2021, ECF No. 23, vacated due to mootness by Silva v. Warden, Stewart Det. Ctr., No. 22-10161-GG (11th Cir. Mar. 16, 2022), ECF No. 35; J. N.C. G. v. Warden, Stewart Det. Ctr., No. 4:20-cv-62-MSH, 2020 WL 5046870, at *2 (M.D. Ga. Aug. 26, 2020); Dorley v. Normand, No. 5:22-cv-62, 2023 WL 3620760, at *4 (S.D. Ga. Apr. 3, 2023), recommendation adopted by 2023 WL 3174227 (S.D. Ga. May 1, 2023); Stephens v. Ripa, No. 22-20110-CIV-MARTINEZ-BECERRA, 2022 WL 621596, at *2 (S.D. Fla. Mar. 3, 2022) (“The Court agrees with . . . other courts in this Circuit that Sopo [] remains persuasive authority as to the due process implications of a prolonged detention under § 1226(c).”); Msezane v. Garland, No. 5:19-cv-51, 2020 WL 1042293, at *7 (S.D. Ga. Jan. 29, 2020) (collecting cases), recommendation adopted by 2020 WL 1046796 (S.D. Ga. Mar. 3, 2020); Lukaj v. McAleenan, 420 F.Supp.3d 1265, 1273-74 (M.D. Fla. 2019) (noting the Eleventh Circuit's “discussion certainly suggests a significant constitutional concern regarding lengthy mandatory detention [under § 1226(c)] without a bond hearing; otherwise, it would not have had any need to use the canon of constitutional avoidance to sidestep what appeared to be a legitimate due process concern”), vacated on other grounds by No. 3:19-cv-241-J-34MCR, 2020 WL 248724 (M.D. Fla. Jan. 16, 2020); Moore v. Nielsen, No.: 4:18-cv-01722-LSC-HNJ, 2019 WL 2152582, at *13 (N.D. Ala. May 3, 2019) (applying the “persuasive guidance” of Sopo to find the petitioner's prolonged detention without a bond hearing unconstitutional). Relying on this persuasive authority, the undersigned's original recommendation reviewed all of the factors identified by Sopo, and concluded the balance weighed in favor of granting Petitioner a bond hearing. Order & R. 12, Nov. 8, 2023, ECF No. 20. Specifically, the undersigned found the factors regarding length of detention, why removal proceedings had been prolonged, and the nature of the detention facility demonstrated Petitioner's detention without a bond hearing violated due process. Id. at 911.
Respondent, however, has steadfastly contended the Court should not conduct a Sopo analysis but instead rely solely on Demore to find Petitioner's detention constitutional. Resp't's Mot. to Dismiss 10, ECF No. 14. In fact, Respondent appears to suggest the only valid question to be asked in response to a due process challenge to prolonged detention is whether the detainee is in fact held under § 1226(c) pending completion of removal proceedings. See Resp't's Obj. 13, ECF No. 22 (“From a due process standpoint, the only salient question to determine whether the detention satisfies the statute's purpose-and the non-citizen's due process rights-is whether those removal proceedings have been completed.”). In other words, if a district court determines the petitioner is held under § 1226(c), that is dispositive of the constitutional challenge and ends the inquiry.
The undersigned disagreed with Respondent's argument in the original recommendation and continues to do so. Adoption of Respondent's position would effectively insulate the executive branch from due process challenges to prolonged § 1226(c) detention. The Government could allow an alien's immigration case to wither for years without judicial review because mandatory detention of criminal aliens is always “a constitutionally permissible part of the removal process.” Id. at 5 (quoting Demore, 538 U.S. at 531). It would relieve the Government of any obligation to ensure removal proceedings are actually adjudicated in a reasonably timely manner because a district court could never look beyond the statutory detention authority. The undersigned does not agree this stark position is supported by the majority opinion in Demore, as evidenced by Justice Kennedy's concurrence-which joined in full with the 5-4 majority opinion-wherein he noted that if the Government unreasonably delayed “pursuing and completing deportation proceedings, it could become necessary then to inquire whether the detention is not to facilitate deportation, or to protect against risk of flight or dangerousness, but to incarcerate for other reasons.” Demore, 538 U.S. at 532-33. Further, it would be contrary to the District Judge's instruction for the undersigned to determine whether petitioner's detention without a bond hearing was not done in order to “reasonably facilitate deportation.” Order 3, Dec. 15, 2023. If the reasonableness question was answered solely by looking at the statutory detention authority, the District Judge would presumably not have issued such instruction but simply rejected the undersigned's previous recommendation and granted Respondent's motion to dismiss.
Instead, it is clear the Court must review the progress of the underlying removal proceedings themselves to determine whether the detention has served to reasonably facilitate deportation as opposed to some other purpose, such as, for example, to punish a criminal alien who has already completed his sentence or to discourage detainees from challenging their removal. If the record demonstrates lengthy periods of detention without any apparent effort by the Government-including immigration courts-to move proceedings along, a fair question could be raised as to whether the detention truly serves the permissible purpose for such detention. See Mohamed v. Sec'y of the Dep't of Homeland Sec., 376 F.Supp.3d 950, 957 (D. Minn. 2018) (“If the process is unreasonably delayed, it could be necessary to inquire whether continued detention is in fact serving the valid purpose of protecting against the risk of flight or dangerousness.”); I.E.S. v. Becerra, No. 23-cv-03783-BLF, 2023 WL 6317617, at *6 (N.D. Cal. Sept. 27, 2023) (“Detention that is excessively or unreasonably prolonged may be punitive.” (citing United States v. Salerno, 481 U.S. 739, 748 (1987)).
In analyzing whether detention has been for the purposes of reasonably facilitating deportation, an obvious threshold consideration is the length of detention. An alien who has been detained for only a few months is highly unlikely to be able to demonstrate that his detention is for an impermissible purpose. However, if the record demonstrates a lengthy period of detention, then a district court must look at why the removal proceedings have been prolonged. See Castro-Almonte v. Searls, No. 22-CV-861 (JLS), 2023 WL 1931853, at *8 (W.D.N.Y. Feb. 9, 2023) (“Demore allows the Court to examine the reason for any delay in [the criminal alien's] removal.” (citing Demore, 538 U.S. at 530-31 n.14-15)). Of course, these factors sound much like the first two factors of the Sopo analysis.
In the order remanding this matter, the District Judge did not mention the original recommendation's reliance on Sopo as persuasive authority, so it is not clear if he rejected the undersigned's consideration of those factors. Nevertheless, it is clear from the District Judge's order that the undersigned's analysis of the second Sopo factor-why removal proceedings have become prolonged-must be modified to adequately account for the underlying purpose of detention, which is to reasonably facilitate deportation. In the original recommendation, the primary focus was on Petitioner's conduct during removal proceedings and not on whether the Government had acted reasonably in attempting to effectuate his deportation.Looking at the second factor in light of the District Judge's instruction to determine whether the record is “without evidence of reasonable efforts to facilitate deportation,” it weighs heavily in Respondent's favor.
The undersigned, however, did find it significant the Government had moved to remand Petitioner's case back to the BIA, noting Respondent had not explained the reason for such action. Order & R. 9 n.4.
Prior to Petitioner even being released from prison, DHS began removal proceedings. Scolnick Decl. ¶ 6; Scolnick Ex. C, at 2-3, 5. Then, upon the removal order becoming final, ICE immediately sought to remove Petitioner, including attempting to obtain travel documents from the Jamaican consulate. Scolnick Decl. ¶¶ 9, 11. Moreover, while Petitioner has been detained for approximately 23 months at this point, the bulk of this period was while the Eleventh Circuit considered his petitions for review and other motions and not due to unexplained inactivity by the immigration courts. Finally, although DHS moved to remand Petitioner's case back to the BIA-which will likely result in removal proceedings not concluding in the near future-a review of the motion indicates it was motivated by a desire to allow Petitioner to present additional evidence on his Convention Against Torture claim. See generally, Pet'r's Suppl. Ex. A, ECF No. 28-1; Pet'r's Suppl. Ex. B, ECF No. 28-2. In summary, the record in this case is not “without evidence” of efforts to facilitate deportation, and therefore, the Court recommends Respondent's motion to dismiss be granted.
The Court acknowledges that by focusing on the reasonableness of the Government's efforts to facilitate deportation, it may be taking a minority position. See Martinez v. Clark, No. C18-1669- RAJ-MAT, 2019 WL 5968089, at *8 (W.D. Wash. May 23, 2019) (“The Government asks the Court to adopt the approach of only a minority of district courts. Out of approximately 50 district court cases that have addressed the issue presented here, the Court has found only seven that put a premium on whether the Government unreasonably delayed the proceedings.”), recommendation adopted by 2019 WL 5962685 (W.D. Wash. Nov. 13, 2019).
CONCLUSION
For the foregoing reasons, it is recommended that Respondent's motion to dismiss (ECF No. 14) Petitioner's application for habeas relief (ECF No. 1) be GRANTED.Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, within fourteen (14) days after being served with a copy hereof. Any objection should be no longer than TWENTY (20) PAGES in length. See M.D. Ga. L.R. 7.4. The district judge shall make a de novo determination of those portions of the Recommendation to which objection is made. All other portions of the Recommendation may be reviewed for clear error.
In light of this recommendation, the Court recommends Petitioner's motion for a preliminary injunction (ECF No. 8) be DENIED AS MOOT. Within that motion is a request for an evidentiary hearing, which is DENIED. Further, the Court's previous recommendation (ECF No. 20) is WITHDRAWN.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.