Opinion
Case No. 98-CR-145 W.
May 31, 2000.
REPORT AND RECOMMENDATION
Defendant, Benjamin H. Wright, was indicted for possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count I). The indictment was returned March 18, 1998 (File Entry # 1). On October 9, 1998 defendant made a motion to suppress evidence seized by government agents (File Entry # 17). Hearings were held before the magistrate judge under 28 U.S.C. § 636 (b)(1)(B)
The final hearing was held on December 14, 1998 (File Entry # 24). The court directed supplemental briefs to be filed by the parties. The brief of defendant was due three weeks after receipt of the hearing transcripts. The government's brief was due five weeks thereafter (Id.). The last transcript was received January 8, 1999 and defendant's brief was due three weeks later. No brief has ever been submitted. The United States took no steps to file a brief or seek any kind of resolution of the issue.
On December 8, 1999 the magistrate judge sua sponte held a hearing to determine the status of the case and why it was not being pursued (File Entry # 27). At that hearing, defendant's counsel explained that he had not presented a brief and he was in fault for not doing so. Counsel for the government also admitted to letting the matter slip by. The court suggested a misdemeanor disposition which the Government said it would consider and report back to the court on December 17, 1999. If it was determined the Government wanted to proceed on the indictment, the defendant's brief was due December 20, 1999 and the Government's brief due 5 weeks later.
The Government did not report to the court on December 17, 1999. No briefs have been filed by the parties and again nothing has been done in this case. Defendant has not filed the brief required for his motion to suppress. See DUCrim R 12-1(d).
The magistrate judge concludes that the defendant has abandoned his motion to suppress by the failure to submit a memorandum and failure to follow the court's directions as to the filing of important material with the court. The defendant has the burden of proof on a motion to suppress, United States v. Moore, 22 F.3d 241, 243 (10th Cir. 1994); United States v. Carr, 939 F.2d 1442, 1446 (10th Cir. 1991), and the defendant's burden has not been met in this case.
Therefore, the defendant's motion to suppress should be DENIED.
Copies of the foregoing Report and Recommendation are being mailed to the parties who are hereby notified of their right to object to the same. The parties are further notified that they must file objections to the Report and Recommendation, with the clerk of the court, pursuant to 28 U.S.C. § 636 (b). within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.