USA v. Burk

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff(s),
v.
JOHNNYLEE PRESTON BURK,
Defendant(s).
Case No. 3:19-cr-00117-SLG-MMS
ORDER RE FINAL REPORT AND RECOMMENDATION ON MOTION TO
DISMISS
Before the Court at Docket 12 is Defendant’s Motion to Dismiss along with
Defendant’s Supplemental Motion to Dismiss at Docket 35. Plaintiff responded in
opposition at Dockets 19 and 36. The motion was referred to the Honorable
Magistrate Judge Matthew M. Scoble. At Docket 54, Judge Scoble issued his Final
Report and Recommendation, in which he recommended that the motion be
denied. Defendant objected to the report at Docket 56. The Government filed a
Supplemental Response at Docket 66. Defendant filed Supplemental Objections
at Docket 81.
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
1 28 U.S.C. § 636(b)(1).
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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.”2
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.”3
Based on the Court’s de novo review of the relevant filings, the Court will
adopt in part the determinations of the magistrate judge as follows:
Paragraph 1 of the Final Report and Recommendation (“FRR”) is adopted
in its entirety, except that the word “replaces” on the eighth line of that paragraph
is replaced with “supplements.”
Pages 2 and 3, and continuing to the first two lines of page 4 (ending with
the cite to Boren), are adopted in their entirety.
The Court adopts in part the next paragraph of the FRR, which is amended
to read as follows:
Burk cites to U.S. v. Sapp, a Northern District of California case, where
the charges against Sapp included federal firearms violations and two
charges under 18 USC § 1114. 272 F.Supp. 2d 897,898 (N.D. Cal.
2003). Sapp shot two local law enforcements officers while they were
executing a state warrant. The district court noted that although “[t]he
U.S. Attorney’s office played a significant role in the effort to
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.”).
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Order re Motion to Dismiss
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apprehend Sapp… the actual operation to apprehend Sapp on the
day in question involved no direct federal participation of any sort.” Id.
at 907. At best, Sapp is persuasive. The Court notes that while the
Sapp court terms the motion before it as a motion to dismiss, the
decision cites extensively to declarations and other evidence in the
record in making its determination as to whether the local law
enforcement officers involved were actually assisting a federal officer
when Sapp was being apprehended within the meaning of 18 U.S.C.
§ 1114. In the instant case, the Indictment alleges that each alleged
victim was “a person assisting an officer or employee of the United
States in the performance of official duties.”4
The Court does not adopt any of the remaining three paragraphs of FRR.
Instead, the Court finds as follows:
The charges in the Indictment follow the requirements set out in the Federal
Rules of Criminal Procedure. See Fed.R.Crim.P. 7(c). Whether the alleged
victims were actually assisting an officer or employee of the United States in the
performance of official duties is an issue for trial.
For the reasons set forth above and in the portions of the FRR that have
been adopted by this Court, the Motion to Dismiss at Docket 12 and the
Supplement at Docket 35 are DENIED.
DATED this 5th day of March, 2020 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
4 Docket 2 at 2.
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