United States District Court, E.D. Kentucky, Southern Division, London
ORDER ADOPTING RECOMMENDED DISPOSITION ON MOTION TO
HORN BOOM, UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on the Recommended Disposition
filed by United States Magistrate Judge Hanly A. Ingram on
the First Motion to Dismiss for Violation of Double Jeopardy
Clause of the Fifth Amendment [R. 274]. Defendant Everett
Miller, Jr. filed the motion to dismiss the charge of
conspiracy to distribute 500 grams or more of a mixture or
substance containing a detectable amount of methamphetamine
in violation of 21 U.S.C. § 846, and Defendant Frank K.
Meeks joined the motion. [R. 258; R. 267] The parties then
briefed the motion pursuant to the Court's orders.
Judge Ingram concluded, in accordance with the current state
of the law as well as the Defendants' own admissions,
that the motion should be denied. [R. 274 at p. 2] The
Magistrate Judge explained that “[b]oth Defendants
recognize that binding precedent requires the denial of their
motion to dismiss, meaning their motion is essentially a
preservation attempt in the event the law changes.”
Id. Based on that acknowledgement as well as the
fact that the Defendants failed to respond to an argument
that the Court specifically ordered them to address (namely,
an argument based on U.S. v. Felix, 503 U.S. 378
(1992)), the Magistrate Judge recommended denying the motion
to dismiss. Id. at pp. 1, 3.
this Court must make a de novo determination of
those portions of the Report and Recommendation to which
objections are made. 28 U.S.C. § 636(b)(1). When no
objections are made, this Court is not required to
“review . . . a magistrate's factual or legal
conclusions, under a de novo or any other standard .
. . .” See Thomas v. Arn, 474 U.S. 140, 151
(1985). Parties who fail to object to a magistrate
judge's recommended disposition are also barred from
appealing a district court's order adopting that
recommended disposition. United States v. White, 874
F.3d 490, 495 (6th Cir. 2017); United States v.
Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).
Ingram's Recommended Disposition advised the parties that
any objections must be filed within five (5) days. [R. 274 at
p. 4] Both Defendant Miller and Defendant Meeks filed
essentially identical objections to the Recommended
Disposition. [R. 275; R. 279] These objections are 1) an
objection that the Defendants “would respectfully take
issue with the criticism of [defense] counsel not to reply or
argue the decision in” Felix, because the
Defendants have taken the position that Felix may be
overruled by a case currently pending before the Supreme
Court, and 2) an objection to the suggestion that the issue
regarding double jeopardy has not been properly preserved.
[R. 275 at pp 1-2; R. 279 at pp. 1-2]
the Court doubts that these statements count as true
objections, even under a de novo standard the Court
finds them to be without merit. As to the first
“objection, ” the fact that the Defendants hope
that the Supreme Court will overturn Felix is
absolutely no reason to fail to address that case pursuant to
a specific Order of the Court. As to the second objection,
the Recommended Disposition contains no affirmative
suggestion that the issue regarding double jeopardy has not
been properly preserved. Rather, it simply recognizes that
the issue of preservation will have to be assessed if and
when the law changes. [R. 274 at p. 2] Finally, both
objections state that “the Defendant understands and
agrees with the decision to deny the motion” and
“[i]n the end, the Defendant accepts the recommended
disposition pursuant to the current state of the law.”
[R. 275 at ¶ 1-2; R. 279 at pp. 1-2] The Court is
similarly satisfied with the Recommended Disposition as a
and the Court being otherwise sufficiently advised,
IT IS HEREBY ORDERED as follows:
Magistrate Judge's Recommended Disposition [R.
274] is ADOPTED as the opinion of
Defendants' Objections to the Magistrate
Judge's Recommended Disposition [R. 275;
R. 279] are OVERRULED.
Defendants' Joint Motion to Dismiss for a
Violation of the Double Jeopardy Clause of the Fifth