USA v. Eklund

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
LOUIS HOLGER EKLUND,
Defendant.
Case No. 3:18-cr-00035-SLG-MMS
ORDER RE REPORT AND RECOMMENDATION REGARDING MOTION TO
DISMISS INDICTMENT [DOC. 86]
Before the Court at Docket 86 is Defendant Louis Holger Eklund’s Motion to
Dismiss Indictment. 	The United States filed an opposition at Docket 90. 	The
motion was referred to the Honorable Magistrate Judge Matthew M. Scoble. 	At
Docket 104, Judge Scoble issued his Report and Recommendation, in which he
recommended that the motion be denied. 	Mr. Eklund objected to the Report and
Recommendation at Docket 106. 	The United States filed a response to Mr.
Eklund’s objections at Docket 107.
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.”1 A court is
to “make a de novo determination of those portions of the magistrate judge’s report
1 28 U.S.C. § 636(b)(1).
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Order re Final Report and Recommendation regarding Motion to Dismiss Indictment [Doc. 86]
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or specified proposed findings or recommendations to which objection is made.”2
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.”3
In this motion, Mr. Eklund asserts that this Court lacks jurisdiction to hear
this matter because there was “no interstate nexus to any of the alleged criminal
activity as required to create a federal offense.”4 He also maintains that he cannot
be prosecuted under 18 U.S.C. §§ 2261A(2)(B) because he was previously
prosecuted by the State of Alaska for violating a protective order.
On de novo review, the Court agrees with the Magistrate Judge’s Report
that any disputed facts to substantiate jurisdiction should be tested at trial.5 	The
Court will not look behind the Grand Jury’s Indictment to assess the adequacy of
the factual basis for its determination. And the separate sovereignty exception to
the Double Jeopardy Clause was most recently reaffirmed by the Supreme Court
in Gamble v. United States, 139 S. Ct. 1960 (2019). 	In addition, Count 2 alleges
separate acts of cyberstalking against a different victim than the one identified in
2 Id.
3 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.”).
4 Docket 86 at 5.
5 See Docket 104 at 2 (citing United States v. De Sapio, 299 F. Supp. 436, 449 (S.D.N.Y. 1969)
(citing Costello v. United States, 350 U.S. 359 (1956)).
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Case No. 3:18-cr-00035-SLG-MMS, United States v. Eklund
Order re Final Report and Recommendation regarding Motion to Dismiss Indictment [Doc. 86]
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Count 1.
In 	light 	of 	the 	foregoing, 	the 	Court 	ACCEPTS 	the 	Report 	and
Recommendation [Docket 104] in its entirety; 	Mr. Eklund’s Motion to Dismiss
Indictment at Docket 86 is DENIED.
DATED this 25th day of September, 2019 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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