USA v. Smith

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
BRIAN CURREN SMITH,
Defendant. 	Case No. 3:16-cr-00138-SLG
ORDER
Before the Court is Cherise Fowler’s Petition for Hearing (Docket 60) asking the
Court to hold a hearing on the property referenced in the Preliminary Order of Forfeiture
(Docket 39). The motion was referred to Magistrate Judge Kevin McCoy On October 4,
2017. Magistrate Judge McCoy promptly scheduled a hearing on the motion. On October
10, 2017 the Government filed a Motion to Vacate Hearing on Third Party Petition (Docket
67). 	Magistrate Judge McCoy granted the motion with a text order at Docket 68 and
issued a Final Report and Recommendation (Docket 69) thereafter, recommending that
the Court dismiss the Petition for Hearing (Docket 60) as moot and vacate that portion of
the Preliminary Order of Forfeiture (Docket 39) only as it relates to the 2007 GMC Yukon,
VIN: 1GKFK13037R132685. No objections were filed.
When a motion has been referred to a magistrate judge, 28 U.S.C. § 636(b)(1)
provides that the district judge “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” However, the district judge
must “make a de novo determination of those portions of the [magistrate judge’s] report
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Case No. 3:16-cr-00138-SLG, USA v. Smith
Order re Final Report and Recommendation
Page 2 of 2
or specified proposed findings or recommendations to which objection is made.”1 	But
“[n]either the Constitution nor the statute requires a district judge to review, de novo,
findings and recommendations that the parties themselves accept as correct.”2 Rather,
“[i]t does not appear that Congress intended to require district court review of a
magistrate’s factual or legal conclusions, under a de novo or any other standard, when
neither party objects to those findings.”3
In light of the foregoing, the Petition for Hearing at Docket 60 is DENIED as moot
and the Court VACATES that portion of the Preliminary Order of Forfeiture at Docket 39
only as it relates to the 2007 GMC Yukon, VIN: 1GKFK13037R132685.
DATED this 31st day of October, 2017 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
1 28 U.S.C. § 636(b)(1).
2 U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (citations omitted).
3 Thomas v. Arn, 474 U.S. 140, 150 (1985).
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