USA v. Cooksey

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
MICHAEL JOSEPH COOKSEY,
Defendant.
Case No. 3:19-cr-00014-SLG-DMS
ORDER RE FINAL REPORT AND RECOMMENDATION TO GRANT
DEFENDANT’S MOTION TO SUPPRESS IDENTIFICATION
Before the Court at Docket 19 is defendant Michael Joseph Cooksey’s
Motion to Suppress Identification. 	The government responded in opposition at
Docket 29. The motion was referred to the Honorable Magistrate Judge Deborah
M. Smith. Judge Smith held a hearing on the motion on June 11, 2019.1 At Docket
55, Judge Smith issued her Initial Report and Recommendation, in which she
recommended that the motion be granted. 	At Docket 57, the government sought
clarification of the Initial Report and Recommendation, specifically as to whether
any in-court identification of Mr. Cooksey could be made by William Shane during
trial. Judge Smith treated this request for clarification as an objection to the Initial
Report 	and 	Recommendation.2 	Judge 	Smith 	issued 	her 	Final 	Report 	and
1 Docket 54 (transcript of hearing).
2 Docket 60 at 2 n. 1, 13–14.
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Identification
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Recommendation at Docket 60, in which she recommended that the motion be
granted, 	including 	any 	future 	in-court 	identification 	by 	the 	witness. 	The
government objected to the Final Report and Recommendation at Docket 63.
The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1). That
statute provides that a district court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge.”3 A court is
to “make a de novo determination of those portions of the magistrate judge’s report
or specified proposed findings or recommendations to which objection is made.”4
But as to those topics on which no objections are filed, “[n]either the Constitution
nor [28 U.S.C. § 636(b)(1)] requires a district judge to review, de novo, findings
and recommendations that the parties themselves accept as correct.”5
Here, the government objected to a factual discrepancy: The Final Report
and Recommendation states both that Mr. Cooksey spent “roughly an hour” at a
witness’s house and that Mr. Cooksey spent “roughly half an hour” at the witness’s
3 28 U.S.C. § 636(b)(1).
4 Id.
5 United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); see also Thomas v. Arn,
474 U.S. 140, 150 (1985) (“It 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.”).
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Order Re Final Report and Recommendation to Grant Defendant’s Motion to Suppress
Identification
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house.6 	Based on the transcript of the witness’s testimony, the Court finds that
Mr. Cooksey spent “[r]oughly about an hour” at the witness’s house.7
The government also objected to “three factual omissions” from the Final
Report and Recommendation: (1) the witness testified that he is near sighted and
has difficulty seeing things at a distance, (2) the witness testified that he was able
to see Mr. Cooksey at close range when he opened the door to him, and (3) the
witness testified that he had not sold any other firearms to anyone.8 As to the first
and third statements, that Final Report and Recommendation expressly addressed
the fact that they were not included in the Initial Report and Recommendation, but
found that consideration of those statements “do[es] not alter the totality of the
circumstances so greatly as to change the [Magistrate] Court’s conclusions.”9 As
to the second statement, the Final Report and Recommendation does not omit this
testimony; it is expressly included in the Final Report and Recommendation.10
Upon review of the witness’s testimony, the Court finds that he did testify to the
three statements, but agrees with the Magistrate Judge that they do not alter this
6 Docket 63 at 2 (government’s objection); Docket 60 at 5, 9.
7 Docket 54 at 74.
8 Docket 63 at 2.
9 Docket 60 at 13 n. 7, 13–14.
10 Docket 60 at 5 (“He said he saw Cooksey closely when he opened the door to him.”).
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Identification
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Court’s conclusion that the witness’s identification of Mr. Cooksey to Officer
Haywood should be suppressed.11
The government does not intend to use the out-of-court identification at trial.
However, 	the 	government 	objected 	to 	the 	suppression 	of 	future, 	in-court
identification of Mr. Cooksey by the witness.12 	In doing so, the government
objected to the weight the Magistrate Judge gave to certain factors in concluding
that 	“the 	totality 	of 	the 	circumstances 	suggests 	that 	BBPD’s 	identification
procedures created a substantial likelihood of misidentification.”13 Neil v. Biggers
lists five factors to be considered in determining whether unnecessarily suggestive
identification procedures created a “substantial likelihood of misidentification”: (1)
the witness’s opportunity to view the suspect at the time of the crime, (2), the
witness’s degree of attention, (3) the accuracy of the witness’s prior description of
the suspect, (4) the witness’s level of certainty as to the identification, and (5) the
length of time between the crime and the confrontation.14
Here, the government asserts that the Magistrate Judge’s decision that “the
most significant factor ‘is the lack of a prior description by [the witness]’ does not
constitute a proper analysis of the ‘totality of the circumstances’ to determine
11 Docket 54 at 74, 75, 88.
12 Docket 63 at 7.
13 Docket 63 at 4–6 (government’s objections); Docket 60 at 13.
14 409 U.S. 188, 199–200 (1972).
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Identification
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whether the identification is sufficiently reliable.”15 The government contends that
“case law does not indicate how much weight to provide” to each of the factors set
forth in Neil v. Biggers.16 	The Court finds that the Magistrate Judge properly
analyzed the Biggers factors with respect to the out-of-court identification. Biggers
states that the central question requires a consideration of the totality of the
circumstances.17 	In considering the totality of the circumstances, it was not
improper for the Magistrate Judge to weigh the lack of any prior description of Mr.
Cooksey by the witness. Because “the Biggers factors assume that a witness has
made a description in the first place,” the Magistrate Judge correctly noted that the
lack of any prior description by the witness was “significant.”18
The Magistrate Judge recommended that the Court grant the Motion to
Suppress 	Identification. 	The 	Court 	has 	reviewed 	the 	Final 	Report 	and
Recommendation and agrees with its analysis with respect to the out-of-court
identification. 	Accordingly, 	the 	Court 	adopts 	the 	Final 	Report 	and
Recommendation at Docket 60, and IT IS ORDERED that the Motion to Suppress
Identification at Docket 19 is granted. However, with respect to any future in-court
identification, the motion is granted without prejudice to the government to make a
15 Docket 63 at 6 (quoting Docket 60 at 12).
16 Docket 63 at 6.
17 409 U.S. at 199.
18 Docket 60 at 12.
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Identification
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showing outside the presence of the jury as to witness William Shane’s ability to
make a reliable and untainted in-court identification of Mr. Cooksey pursuant to the
factors set forth in Biggers.
DATED this 2nd day of October, 2019, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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