USA v. Yang

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
BOONCHAN YANG,
Defendant.
Case No. 3:14-cr-00069-SLG
ORDER RE FINAL REPORT AND RECOMMENDATION
On October 9, 2020, a second superseding petition to revoke supervised
release was filed against Boonchan Yang, alleging seven violations of his
conditions of release.1 Mr. Yang denied any drug use when speaking with his
probation officer.2 A two-day evidentiary hearing was held on the matter before
Magistrate Judge Deborah M. Smith.3 At Docket 157 Judge Smith issued her
Report and Recommendation in which she recommended that the District Court
find Boonchan Yang guilty of Violations 1 and 4 of the Second Superseding
Petition and further, that Violations 2, 3, 5 (DUI allegation), 6, and 7 of the Petition
be dismissed. Defendant filed an objection to the Report and Recommendation at
1 Docket 114.
2 Docket 148 at 20, 31.
3 Dockets 147, 148.
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Order re Final Report and Recommendation
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Docket 161. The Government filed a response of no objections to the Report and
Recommendation at Docket 164.
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.”4 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.”5
But as to those topics on which no objections are filed, “[n]either the Constitution
nor [28U.S.C. § 636(b)(1)] requires a district judge to review, de novo, findings and
recommendations that the parties themselves accept as correct.”6
The magistrate judge recommended that the Court find Defendant Yang
guilty of Violations 1 and 4 of the Second Superseding Petition and that Violations
2, 3, 5 (DUI allegation), 6, and 7 of the Petition be dismissed. Defendant’s objection
asserts that the magistrate judge failed to consider the possibility of outside
contamination because the protective layer of the patches underlying both
allegations 1 and 4 had been compromised.7 However, on de novo review, the
Court agrees with the magistrate judge’s finding that a preponderance of the
4 28 U.S.C. § 636(b)(1).
5 Id.
6 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.”).
7 Docket 161 at 2.
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Case No. 3: 14-cr-00069-SLG, USA v. Yang
Order re Final Report and Recommendation
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evidence presented at the evidentiary hearing supports a finding that both
Defendant committed both Violation 1 and Violation 4. Accordingly, the Court
adopts the Report and Recommendation, and IT IS ORDERED that Defendant is
adjudged GUILTY of Violation 1 and Violation 4. Violations 2, 3, 5, 6, and 7 are
each DISMISSED.
A disposition hearing will be scheduled by separate order in due course.
DATED this 21st day of September, 2021 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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