Opinion
CR-21-01118-001-TUC-JCH (JR)
06-22-2023
United States of America, Plaintiff, v. Duane Lee Johnsen, Defendant.
REPORT AND RECOMMENDATION
HONORABLE JACQUELINE M, RATEAU, UNITED STATES MAGISTRATE JUDGE
This matter is referred to United States Magistrate Judge Jacqueline Rateau for pretrial matters. On May 5, 2023, Defendant Duane Lee Johnsen (“Defendant”) filed a Motion to Dismiss Indictment. (Doc. 82). On May 19, 2023, the United States (the “Government”) filed its Response in Opposition to Defendant's Motion to Dismiss Indictment. (Doc. 86). Defendant did not reply. On June 8, 2023, a hearing was conductedbefore the undersigned at which Defendant testified and five exhibits were admitted. (Doc. 88-90). The Court took the matter under advisement. (Doc. 87). The plea deadline is August 25, 2023 and a jury trial is set for September 11, 2023 at 930 a.m. before District Judge John Hinderaker. (Doc. 81). As more fully set forth below, the Magistrate Judge recommends that the district court deny Defendant's Motion to Dismiss Indictment.
The hearing included Defendant's Motion to Suppress (Doc. 83). The Court issues it Report and Recommendation on that motion separately.
I.Facts
a. Charges
On May 19, 2021, Defendant was indicted on one count of violating 18 U.S.C. § 2252A(a)(5)(B) and (b)(2), Possession of Child Pornography, and three counts of violating 18 U.S.C. § 2252A(a)(5)(B) and (b)(2), Knowing Access of Child Pornography. (Doc. 1). On April 12, 2023, a Superseding Indictment charged Defendant with the above mentioned four counts and an additional count of violating 18 U.S.C. § 2252(a)(2) and (b)(1), Receipt of Child Pornography. (Doc. 71).
Unless otherwise noted the Factual Background is taken from the Government's Response in Opposition to Defendant's Motion to Dismiss Indictment. (Doc. 86).
Defendant came to the attention of Homeland Security Investigations (“HIS”) in August 2018 when law enforcement identified an IP address belonging to Defendant as sharing several files suspected of containing child sexual abuse material. (Doc. 86 at 2). Law enforcement used software to identify people using the eMule file sharing program to obtain and share child pornography. Id. The specialized software operates on a public file-sharing network and identifies targets of interest by comparing the “hash-values” of files being shared over the eMule network against a database of hash-values previously identified as depicting child pornography. Id. After the software notes the files suspected of containing child sexual abuse material, the software then enables law enforcement to make a direct connection with the suspect IP address to begin downloading the illegal files. (Doc. 86 at 2).
Relevant to this case, starting on August 3, 2018, HSI special agents made a direct connection with Defendant's IP address and attempted to download files suspected of depicting child sex abuse. Id. While special agents could not download the files in their entirety, the eMule software confirmed that Defendant possessed the suspected files in their entirety (rather than in “packets”), and also showed the respective file names as they appeared on the computer associated with Defendant's IP address. Id. The file names indicated that the files likely depicted child sexual abuse. Id. at 2-3. HSI special agents identified 19 such files as available in eMule user “Sparky's Engine's” shared folder between August 3, 2018, and November 19, 2018. Id. at 3.
The Government alleges that “Sparky” is Defendant's public nickname on his Facebook account. (Doc. 86 at 3 n. 3.) Defendant has not challenged the Government's allegation.
Law enforcement eventually learned that the IP address sharing these files was registered in Defendant's name and traced the IP address back to his home in Tucson, Arizona. Id. HSI special agents procured a federal search warrant for Defendant's home and executed the warrant on December 10, 2018, seizing 7 computers, 3 laptops, 25 hard drives, 13 USB thumb drives, 52 DVDs, and numerous other digital devices and storage media. Id. At least 5 of the seized computers contained between 2 and 6 individual hard drives. Id. Several of the seized devices and hard drives contained evidence of child sexual abuse material as well as the eMule program and artifacts related to file-sharing. Id. Over 684 videos and over 100,000 images of graphic child pornography depicting pre-pubescent victims were present on multiple devices. (Doc. 86 at 3). Also found were multiple variants of eMule, the peer-to-peer program from which HSI identified Defendant and confirmed that the username on the software was “Sparky's Engine.” Id.
Additional facts established at the evidentiary hearing relevant to the issues on review are discussed infra.
II.Motion to Dismiss
Defendant moves to dismiss on two grounds. (Doc. 82). First, Defendant claims that his Fifth Amendment right to due process was violated based on the Government's preindictment delay. Id. at 2-5. Second, Defendant brings a selective prosecution claim arguing that the Government is improperly prosecuting him to the exclusion of other individuals who are also suspected of sharing child pornography using the peer-to-peer network that he was using. Id. at 6-7. The Court addresses Defendant's two grounds for relief in seriatim.
a. Due Process Violation Legal Standard
“An indictment is rarely dismissed because delay by the prosecution rises to the level of a Fifth Amendment due process violation.” United States v. Barken, 412 F.3d 1131, 1134 (9th Cir. 2005). To establish a due process violation due to preindictment delay, the defendant must show that: (1) “he suffered actual, non-speculative prejudice from the delay” and (2) that the delay, when viewed against the reasons causing it, “offends those fundamental conceptions of justice which lie at the base of our civil and political institutions.” Barken, 412 F.3d at 1134. “The defendant's burden to show actual prejudice is heavy and is rarely met.” Id. The district court should not proceed unless a defendant first demonstrates actual prejudice. Id. (citing United States v. Manning, 56 F.3d 1188, 1194 (9th Cir. 1995)). “In the second part, the delay is weighed against the reasons for it, and the defendant must show that the ‘delay offends those fundamental conceptions of justice which lie at the base of our civil and political institutions.'” Barken, 412F.3d at 1134 (quoting United States v. Doe, 149 F.3d at 948).
“Generally, the statute of limitations for a particular crime limits the government's delay in bringing an information and protects the defendant from the effects of excessive delay.” United States v. Doe, 149 F.3d 945, 948 (9th Cir. 1998) (citing United States v. Huntley, 976 F.2d 1287, 1290 (9th Cir. 1992)). The Government represents that the indictment here was brought within the limitations period. (Doc. 86 at 5). Defendant has not challenged that representation. “However, delay violating a defendant's Fifth Amendment due process rights requires dismissal of the charges even if the statute of limitations has not expired.” Doe, 149 F.3d at 968 (citing Huntley, 976 F.2d at 1290).
b. Due Process Claim Analysis
Defendant claims he suffered actual prejudice because he requested that a representative be present “at any subsequent searches of his computer equipment” and one was not. (Doc. 82 at 3). He claims to have suffered actual prejudice when all of his computers and records were seized because he was “unable to access any of the records, personal memorabilia or possessions” that were stored on the seized devices. Id. He claims actual prejudice based on the Government's delay because he is unable to track the IP addresses of other peer-to-peer file sharers, the data from his surveillance cameras has been purportedly lost, and the Government has impaired his ability to locate the individuals who previously owned his computers. Id. at 4-5. He also claims prejudice on the grounds that “the Government has shown that it was aware of the need to file charges within a reasonable time frame through its request to seal.” Id. at 5. As explained below, the Court finds that none of Defendant's claims satisfy his heavy burden to establish actual prejudice.
Defendant claims he suffered actual prejudice because he asked for a representative to be present during the search of his seized devices and one was not. (Doc. 82 at 2-3). Defendant testified that he made the request to have a representative present during the search of his seized devices “well after” the agent turned off the recorder that was recording his interview. See Transcript of Proceedings (TR) at 26. The Government responds that a defendant does not have a right to be present during a forensic search of seized devices. (Doc. 86 at 6). Defendant has not pointed to any authority to the contrary. See Doc. 82.
Defense counsel stated at the evidentiary hearing that he believes this is a case of first impression on this issue. (TR 8).
The Government lays out that all of the items seized were forensically copied and the content of the original seized devices is unchanged from their original state on the date of seizure, December 10, 2018. (Doc. 86 at 6; TR 55-56). The Government represents that the copies of the seized devices accurately capture the contents of the original devices at the time of seizure and that the forensic copies remain available for Defendant or his representative to examine upon request. Id. Defendant offers no evidence to challenge the Government's representation regarding the seized devices, the forensic copies of the seized devices, or his ability to access the forensic copies either himself or through a representative. In light of the foregoing, this Court finds that Defendant has failed to establish that he suffered actual prejudice because he was denied a representative during the forensic search of his seized devices.
This Court also finds Defendant's claim that he suffered actual prejudice because he was unable to access his records and personal memorabilia falls short of establishing actual prejudice. (Doc. 82 at 3). Defendant has failed to establish that his inability to access his personal records and memorabilia preindictment prevented him from preparing a defense in this case. Id. Furthermore, Defendant acknowledges that “this [reason] alone is not sufficient for the Court to dismiss [the indictment].” Id. at 4.
Defendant also argues that he suffered actual prejudice because the Government's preindictment delay prevented him from (1) tracking the IP addresses of other peer-to-peer file sharing users, (2) obtaining surveillance camera footage, and (3) identifying the prior owners of the seized devices. (Doc. 82 at 4). Regarding his desire to track the IP addresses of other peer-to-peer file sharing users, Defendant claims that “[g]iven the fast changing arena of computer program, file options, internet connections and the evanescent nature of on-line accounts, the two plus year delay means tracking the IP addresses of other peer to peer sharers is impossible.” Id. However, Defendant, charged with possessing, knowingly accessing, and receiving child pornography, fails to establish what actual prejudice has come to him as a result of his inability to locate the IP addresses of other peer-to-peer software users. Defendant has failed to articulate a theory under which the IP addresses of the eMule users is relevant to his defense to the charges in this case.
Additionally, Defendant's testimony fails to support his contention that it was the Government's preindictment delay that prevented him from locating the IP addresses of other eMule users. Defendant testified:
Q. You think you could identify the various IP addresses of various people that shared files with you?
A. It would just be numbers.
Q. Well, either you can identify IP address of people who shared files or you couldn't. Your testimony was that you could if you were given the chance.
A. If I was looking at the specific file, I could say that's where it's coming from.
Q. Even though it comes from multiple sources?
A. As I'm watching the file, I can see which one it's coming from.
Q. But you are aware that, when a filed is downloaded by eMule, it comes from many sources and never just one? Are you aware of that?
. . .
A. One at a time. I can't download a file from several different locations at a time.
Q. Well, if a file is compiled of many different packets of data, is it your testimony that you can identify where each one of those packets of data came from or not?
A. No.(TR 64-65). Defendant further testified:
Q. Mr. Johnsen, you just testified that, when the file is being downloaded but not yet complete, you believe that it would be possible to see who's sending the individual -- to find the IP address of who's sending the individual pieces?
A. I do believe it is possible to discern that information eventually.
Q. But the file itself is not visible until it's complete --
A. The file itself --
Q. -- correct?
A. I cannot view what the file is until it completes.
Q. And then --
Q. I can look at the download information, I can look at file information, I
can look at where it's coming from, how fast it's coming in, the history of the data packet acquisition, the speed of it coming in, but I don't know what the file is until it completes.
Q. And you said, once it's complete, the data is gone?
A. Yeah.
Q. So until the file is complete, you have no idea what you're going to get?
A. Correct.
Q. Right. So it could be Doctor Who, it could be child pornography, it could be a book?
A. Yes.
Q. And once it's complete, for you to know what file it is, all that data, which is basically numbers, is gone?
A. Correct.(TR 75-76). In light of his testimony, Defendant's position that the Government's delay in indicting him prevented him from identifying other peer-to-peer file sharing users is unsupported. By Defendant's own account, he has no ability to see the file that is being downloaded until the download is complete and his ability to identify the IP addresses of other peer-to-peer file sharing users is lost at the moment a file sharing download is complete. In light of Defendant's testimony, this Court cannot find that Defendant has established that he suffered actual prejudice because he is unable to identify other peer-to-peer software users as a result of the Government's preindictment delay.
Regarding his claim of lost surveillance camera footage, Defendant claims that agents destroyed his surveillance cameras when serving the search warrant. (TR 28). He claims:
[w]hile there is some limited ability analyze the computers now, [he] has lost his right to observe the process and to preserve potentially exculpatory material. In particular, [Defendant] had surveillance cameras which fed data into the computers which were taken. No data regarding the cameras has been disclosed, even though it would be a real-time recording of the procedures used by [a]gents serving the warrant, including the destruction of cameras themselves.(Doc. 82 at 5). Defendant testified that his surveillance camera data was not being uploaded to the cloud because he did not have the data space. (TR 25). On direct examination, he testified that “it is possible” that there is some surveillance footage on one of the seized computers. (TR 28-29). On cross-examination, Defendant admitted that his surveillance cameras recorded locally on his computers' hard drives. (TR 55). As laid out above, the Government represents that the data on the seized computers is preserved in the same state in which it was seized on December 10, 2018, that a forensic copy of the data from the seized devices has been created and has been made available to Defendant or his representative. (TR 56). Defendant has offered no evidence to rebut the Government's representation and has apparently failed to examine the contents of the seized devices in an effort to locate surveillance camera footage that is helpful to his position. Accordingly, this Court finds that Defendant has not established that he suffered actual prejudice on the grounds that the Government allegedly lost or destroyed surveillance camera footage while serving the search warrant.
Regarding Defendant's claim that the Government's delay in serving the warrant prevented him from tracking the origin of his computers and other digital storage devices, Defendant testified that he acquired all of his devices except his laptop (which he purchased new) either from his church's flea market, computer stores around Tucson, or eBay. (Doc. 82 at 5; TR 37). He claims that he did not do a hard reformat of the hard drives that were contained on the used computers that he acquired. He claims that he only did a “basic” or “quick” reformat of the used hard drives. (TR 57-58). As a result of this “basic” or “quick” reformat, Defendant claims that only the data addressing was erased, not the data itself. Id. Defendant testified:
Q. So if you received computers or parts of computers from the church or from church donations, they weren't items that still belonged to someone else?
A. Correct.
Q. They became yours?
A. Yes.
Q. And you reformatted them?
A. Did a basic format.
A. Okay. Now, doesn't that replace - - doesn't that start over?
A. No.
Q. You're saying it retains all the data that it used to have?
A. Yes.
Q. And are you suggesting that the child pornography that was found on various devices was someone else's?
A. I have no information there.(TR 57). Defendant also testified:
Q. So if -- did you ever make -- well, if you were aware of what hard drives had material on them that's illegal, would you have been able to go back to the church and figure out who sold it to you?
A. No.
Q. Why not?
A. Most of the donations came in anonymously. [ . . .](TR 38).
This Court finds that Defendant's claim of actual prejudice because he is unable to track the origin of his computers or other digital storage devices as a result of the Government's delay in serving the warrant is unsupported. As set forth above, when Defendant was asked if he was claiming that the child pornography that was found on his computers was someone else's, he did not answer “yes.” Rather, he testified that he has “no information there.” (TR 57). If by his “no information there” answer Defendant is claiming actual prejudice because he could not locate the prior owners of his computers due to Government delay, the Court finds that Defendant's testimony is insufficient to establish actual prejudice.
The Ninth Circuit Court of Appeals has held that speculation regarding whether a defendant could have located and uncovered exculpatory evidence fails to establish actual prejudice. See United States v. Doe, 149 F.3d at 949 (“An allegation of prejudice must be supported by non-speculative proof.” (citing United States v. Sherlock, 962 F.2d 1349, 1353-54 (9th Cir. 1989)). In Doe, the appellate court rejected the defendant's claim that he was prejudiced by four-year preindictment delay because he lost the opportunity to look for key evidence-a blue backpack that was reported to have been lying next to the body- which might have contained exculpatory evidence. Doe, 149 F.3d at 949. See also United States v. Corona-Verbera, 509 F.3d 1105, 1112 (9th Cir. 2007) (finding actual prejudice not established where the defendant's claim was based on “generalized speculation” where “no affidavits nor any nonspeculative proof as to how he was prejudiced by the loss of witnesses”); Manning, 56 F.3d at 1194 (holding that seven year pre-indictment delay did not prejudice the defendant where claim of actual prejudice was based upon generalized assertions of the loss of memory, witnesses, and evidence).
The Court also finds that Defendant's claim of actual prejudice because he is unable to determine the identity of the prior owners of his computers or other digital storage devices because they were donated to the church anonymously fails. (TR 38). From Defendant's testimony, the Government's delay in indicting him has nothing to do with his ability to determine the prior owners of his computers. Defendant's testimony is that due to the anonymous nature of the computer donations he could not identify the prior owners of his computers. Id. Defendant's testimony is unqualified and a fair interpretation of his testimony is that he could not identify the prior owners of his computers no matter how quickly he had been indicted.
There appears to be no issue of computer donor anonymity with respect to the computers or other digital devices that Defendant acquired through eBay (and maybe also those that he purchased from computer stores in Tucson) as these purchases are trackable. Defendant has offered no argument concerning the prior owners of the computers or other digital devices that he bought off of eBay or from local computer stores. Defendant has exclusively argued that, due to Government delay, he is unable to locate the prior owners of the computers or other digital devices that he obtained from his church. (Doc. 82 at 5).
Lastly, Defendant's claim that the Government was “aware of the need to file charges within a reasonable time frame through its request to seal” also fails to establish that he suffered actual prejudice. As the Government points out, the search warrant sealing period is governed by local rule. (Doc. 86 at 7 n. 4). The Government sets out that it did not seek to extend the search warrant sealing period because Defendant knew of the investigation once the search warrant was executed. Id. Defendant has not addressed the Government's position or explained how the warrant sealing period supports his claim of actual prejudice. This Court finds that the Government's failure to seek to extend the search warrant sealing period fails to establish actual prejudice.
In sum, this Court finds that Defendant has failed to meet his heavy burden of establishing that he suffered actual prejudice as a result of the Government's delay in serving the search warrant. Therefore, this Court recommends that Defendant's motion to dismiss based on a violation of his due process right be denied. Assuming, arguendo, that Defendant has established that he suffered actual prejudice (and this Court finds that Defendant has not established actual prejudice), Defendant must also establish that the delay in prosecuting him “offends those fundamental conceptions of justice which lie at the base of our civil and political institutions.” Barken, 412 F.3d at 1134; Doe, 149 F.3d at 948. As explained below, this Court finds that Defendant has not done so.
On this second prong, Defendant asserts only that, “[t]he Government now has the burden to show why [his] actual prejudice is outweighed by the reasons for the delay.” (Doc. 82 at 5). Defendant fails to cite any authority for his position that the Government bears the burden on the second prong. Id. Contrary to Defendant's assertion, it is a defendant's burden to establish the second prong. See Barken, 412 F.3d at 1134 (holding “[i]n the second part, the delay is weighed against the reasons for it, and the defendant must show that the delay ‘offends those fundamental conceptions of justice which lie at the base of our civil and political institutions.'”) (emphasis added). As Defendant has failed to offer any basis for the district court to find that his actual prejudice is outweighed by the reasons for the delay, this Court is constrained to find that Defendant has failed to carry his burden.
Nevertheless, this Court has considered the Government's argument and finds that any delay in this case was reasonable. The Ninth Circuit Court of Appeals has held that the “mere passage of time does not give rise to a per se constitutional violation." United States v. Doe, 642 F.2d 1206, 1208 (9th Cir. 1981). As mentioned above, numerous electronic devices, including cellphones, desktop computers, laptop computers, and other digital storage devices were seized. Some of computers contained multiple hard drives. The content of the seized devices had to be forensically duplicated and then examined through labor-intensive and time-consuming processes. During the Government's investigation the COVID-19 pandemic occurred thereby prolonging the investigation. Grand jury proceedings were also suspended during the COVID-19 pandemic. See e.g., Gen. Ord. 20-12 (suspending grand jury proceedings for a period of time during the COVID-19 pandemic). This Court finds that under the circumstances present in this case any delay in indicting Defendant does not offend our civil and political institutions' fundamental conceptions of justice.
In sum, this Court recommends that the district court deny Defendant's motion to dismiss based a violation of due process.
c. Selective Prosecution Legal Standard
Courts “must exercise a high degree of deference to the decision of prosecuting authorities to bring charges, because the Constitution assigns that decision to the executive branch of government.” United States v. Arenas-Ortiz, 339 F.3d 1066, 1068 (9th Cir. 2003) (citing United States v. Armstrong, 517 U.S. 456, 464, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996)). “One important restriction on prosecutorial discretion, however, is that ‘the decision whether to prosecute may not be based on an unjustifiable standard such as race, religion, or other arbitrary classification.'” Arenas-Ortiz, 339 F.3d at 1068 (quoting Armstrong, 517 U.S. at 464, 116 S.Ct. 1480) (additional citation and internal quotations omitted). To establish an equal protection claim, “[t]he claimant must demonstrate that the federal prosecutorial policy ‘had a discriminatory effect and that it was motivated by a discriminatory purpose.'” Armstrong, 517 U.S. at 465 (quoting Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985)). A claim of selective prosecution is “not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution.” Armstrong, 517 U.S. at 463. “A defendant has the burden of proving both elements. United States v. Bourgeois, 964 F.2d 935, 938 (9th Cir. 1992). The standard is a “demanding one,” and reviewing courts must show a “high degree of deference to the decision of prosecuting authorities.” Arenas-Ortiz, 339 F.3d at 1068 (quoting Armstrong, 517 U.S. at 463).
d. Selective Prosecution Claim Analysis
Defendant urges that he satisfies the first prong of his selective prosecution claim- discriminatory effect-claiming:
[T]he first prong of the test is easily met[.] Agents were monitoring traffic going into a computer file with an IP address later affiliated with Mr. Johnsen. Part of that monitoring included removing file information from the
computer the eMule program was running on. Those data packets obtained by the Government each had a “from” address-i.e. they did not originate at the IP address where they were found. By not preserving and prosecuting the information about where the data packets originated, the Government chose to ignore similarly situated individuals who were apparently making contraband files available on the internet.(Doc. 82 at 6-7). The Court agrees with the Government that a fatal flaw in Defendant's assertion that the first prong is satisfied is that he has not established that he is a member of a protected class. See e.g., Arenas-Ortiz, 339 F.3d at 1068 (recognizing that the decision whether to prosecute may not be based on an unjustifiable standard such as race, religion, or other arbitrary classification).
Additionally, Defendant offers no evidence on the identity and characteristics of the other users of the eMule software who may also be suspected of sharing child pornography over the internet and who thus should have been prosecuted but were not. As laid out above, according to Defendant once a download is complete the identifying information of other peer-to-peer software users-an IP address-vanishes. (TR 64-65, 75-76). Defendant's argument that his prosecution has a discriminatory effect is unsupported. See Arenas-Ortiz, 339 F.3d at 1068 (“To meet the first requirement, discriminatory effect, Arenas-Ortiz ‘must show that similarly situated individuals of a different [protected class] were not prosecuted.'”) (additional citation omitted). As a result of the above noted failures, this Court finds that Defendant has failed to establish that his prosecution has a discriminatory effect.
Defendant's effort at establishing the second prong of his selective prosecution claim-discriminatory purpose-fairs no better. Defendant baldly claims that he is being prosecuted as punishment for his 1994 convictions. (Doc. 82 at 7). Defendant has offered no evidence that his prosecution is impermissibly motived. The Government has laid out that Defendant was investigated because it obtained information that he was using the eMule file sharing program to obtain and share child sexual abuse material. (Doc. 86 at 2-3). Defendant has failed to establish that his status as a registered sex offender as a result of his prior crimes against children conviction supports a finding that his prosecution is impermissibly motivated.
“[C]riminal defendants are not a protected class …” See United States v. Ayala-Bello, 995 F.3d 710, 714 (9th Cir. 2021), cert. denied, 211 L.Ed.2d 310, 142 S.Ct. 513 (2021) (citing United States v. Ruiz-Chairez, 493 F.3d 1089, 1091 (9th Cir. 2007)).
In sum, this Court recommends that the district court deny Defendant's motion to dismiss based selective prosecution.
III. Recommendation
For the reasons set forth above, this Court RECOMMENDS the district court DENY Defendant's Motion to Dismiss Indictment (Doc. 82).
This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment. However, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. No replies are permitted without leave of court. If any objections are filed, this action should be designated case number: CR 21-1118-TUC-JCH. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Dated this 22nd day of June, 2023.