Opinion
Criminal Action No.: 1:18-CR-1
03-15-2019
JUDGE KEELEY
REPORT AND RECOMMENDATION
This matter is before the undersigned pursuant to a Referral Order entered by Judge Keeley on March 12, 2019 (ECF No. 206), referring the Motion to Suppress filed by Defendant on March 11, 2019 (ECF No. 204). In Defendant's Motion to Suppress, Defendant moved to suppress statements that were allegedly made on September 13, 2016. Defendant argued that the statements were made in connection with a defective warrant and that the Assistant United States Attorney stated these statements were not going to be used at trial. (ECF No. 204, at 2). Defendant argued that the Government had previously told Defendant's counsel that materials seized as a result of the defective warrant were not going to be introduced at trial, but then provided Defendant, in discovery, a recorded statement made in conjunction with the execution of said warrant.
On March 15, 2019, the Government filed its Response (ECF No. 211) in which the Government stated that the Government does not intend to use the September 13, 2016 statement in its case-in-chief and does not oppose Defendant's Motion. The Government's only intent to use the statements would be to impeach Defendant's testimony, if Defendant chooses to testify.
Accordingly, the undersigned RECOMMENDS that Defendant's Motion to Suppress be DENIED as MOOT.
Any party may, on or before Tuesday, March 20, 2019, file with the Clerk of Court written objections identifying the portions of the Report and Recommendation to which objection is made, and the basis for such objection. A copy of such objections should also be submitted to the Honorable Irene M. Keeley, United States District Judge. Failure to timely file objections to this Report and Recommendation set forth above will result in waiver of the right to appeal from a judgment of this Court based upon the Report and Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 717 F.2d 91 (4th Cir. 1984).
"Although parties are typically given fourteen days to respond to a Report and Recommendation, see 28 U.S.C. § 636(b)(1), this allowance is a maximum, not a minimum, time to respond, and the Court may require a response within a shorter period if exigencies of the calendar require. United States v. Barney, 568 F.2d 134, 136 (9th Cir.1978)." United States v. McDaniel, 1:16-CR-52 (ECF No. 32 at 14-15, at footnote). See also United States v. Cunningham, 2011 WL 4808176, n. 1 (N.D. W. Va., Oct. 6, 2011); United States v. Mason, 2011 WL 128566, n. 7 (N.D.W. Va. Jan. 7, 2011). In this case, the final pretrial conference is set before the Honorable District Judge Irene Keeley on April 8, 2019 and Jury Selection and Trial is set for April 23, 2019. The resulting calendar exigency thus warrants shortening the period with which to file objections to the Report and Recommendation and will be due by March 20, 2019. --------
The Clerk of Court is DIRECTED to provide a Copy of this Report and Recommendation to counsel of record, as provided in the Administrative Procedures for Electronic Case Filing in the United States District Court for the Northern District of West Virginia. Date: March 15, 2019
/s/_________
MICHAEL JOHN ALOI
UNITED STATES MAGISTRATE JUDGE