Opinion
CASE NO. 05-20652-CR-ALTONAGA/Brown.
August 19, 2010
ORDER
On April 1, 2010, Defendants, Madjied Samsoedien and Nancy Karrsenhout, filed a Motion for New Trial or Evidentiary Hearing Pursuant to Fed.R.Crim.P. 33 Founded on Newly Discovered Evidence ("Motion") [ECF No. 370]. By Order dated April 7, 2010 [ECF No. 372], the Motion was referred to Magistrate Judge Stephen T. Brown for a report and recommendation. Thereafter, and rather than respond to the substantive arguments raised in the Motion, the Government filed a Motion to Dismiss Defendant's [sic] Motion for New Trial for Failure to File Within Three-Year Limitations Period Under Fed.R.Crim.P. 33 ("Motion to Dismiss") [ECF No. 373]. Magistrate Judge Brown entered his Report and Recommendation ("Report") [ECF No. 379] July 13, 2010, recommending that the Government's Motion to Dismiss be granted. Defendants sought and were granted an extension of time, until August 15, 2010, to file objections to the Report ( See [ECF No. 381]). To date, no objections have been received, and no further extensions have been requested.
"Failure to object to the magistrate's factual findings after notice precludes a later attack on these findings." Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988) (citing Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982)).
The Court has carefully reviewed Judge Brown's Report, the parties' written submissions, and the applicable law, and has conducted a de novo review of the record. Based on that review, the Court is in complete agreement with Magistrate Judge Brown that Defendants' Motion was filed well over three years after the entry of the verdict of guilty, and as such, is untimely under Fed.R.Crim.P. 33(b)(1). Necessarily, the Court also agrees with the Magistrate Judge that the Government's Motion to Dismiss should be granted. Accordingly, it is
ORDERED AND ADJUDGED that the Report is affirmed and adopted. The Motion to Dismiss [ECF No. 373] is GRANTED. Defendants' Motion for New Trial or Evidentiary Hearing Pursuant to Fed.R.Crim.P. 33 Founded on Newly Discovered Evidence [ECF No. 370] is DENIED. DONE AND ORDERED in Chambers at Miami, Florida.