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United States v. Brollini

United States District Court, D. Arizona

June 19, 2018

United States of America, Plaintiff,
v.
Van Raymond Brollini, Defendant.

          ORDER

          Cindy K. Jorgenson United States District Judge.

         On May 4, 2018, Magistrate Judge Bruce G. Macdonald issued a Report and Recommendation ("R and R") (Doc. 79) in which he recommended the Motion for Bill of Particulars (Doc. 44), the Motion to Strike (Doc. 45), the Motion to Suppress (Doc. 46), and the Motion to Dismiss Counts One and Two of the Indictment (Doc. 47) filed by Van Raymond Brollini (“Brollini”) be denied.[1] The R and R notified the parties that they had fourteen days from the date of being served with the copy of the Report and Recommendation to serve and file any objections.

         Brollini filed objections to the R and R. (Doc. 83). The government has filed a response (Doc 85).

         The Court has reviewed the Motion for Bill of Particulars (Doc. 44), the Motion to Strike (Doc. 45), the Motion to Suppress (Doc. 46), and the Motion to Dismiss Counts One and Two of the Indictment (Doc. 47), the responses (Docs. 61, 62, 63, 64), the replies (Docs. 72, 74, and related documents (Doc. 52, 69, 79, 83, 84). Brollini has requested this matter be set for oral argument. However, the issues are fully presented in the briefs and the Court finds it would not be assisted by oral argument. The Court declines to schedule this matter for oral argument. LRCiv 7.2(f); LRCrim 12.1(a).

         Standard of Review

         The standard of review that is applied to a magistrate judge's report and recommendation is dependent upon whether a party files objections - the Court need not review portions of a report to which a party does not object. Thomas v. Arn, 474 U.S. 140, 150 (1985). However, the Court must “determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instruction.” Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. § 636(b)(1) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”)

         Factual Findings

         Brollini objects to the lack of specific factual findings by the magistrate judge. In this case, testimony was not presented to the magistrate judge. Rather, the parties submitted briefs, written exhibits, and argument to the magistrate judge.

         Although the R & R does not include a separate statement of specific findings of facts, the R & R includes implicit findings of facts (e.g., the R & R states that Brollini “began evading his taxes beyond the six year limitations period” (Doc. 79 at 6)). Moreover, although the statute authorizes reference to a magistrate judge to prepare a report and recommendation that may include findings facts, the statute does not necessarily require specific factual findings. Indeed, there may be an undisputed factual record where only legal conclusions must be made. See e.g. 91 C.J.S. United States Magistrates § 11 (“If a magistrate decides on an undisputed factual record . . .”).

         Generally, it appears the issues before the Court do not depend on disputed facts. It is the significance of the undisputed facts, as applied to legal principles, that must be decided in resolving the pending motions. The Court, therefore, will overrule this objection.

         Statute of Limitations

         Brollini asserts the R & R incorrectly relies on a single case, United States v. Ferris, 807 F.2d 269 (1st Cir. 1986). Rather, Brollini asserts the crimes charged in Counts One and Two are not continuing offenses, but were complete once each element of the offenses occurred, and are barred by the statute of limitations. Toussie v. United States, 397 U.S. 112 (1970). However, the Ninth Circuit has stated that a “charge of tax evasion under 26 U.S.C. § 7201 ‘is timely so long as it is returned within six years of an affirmative act of evasion, ' even if the evasion first began outside the period.” United States v. Murphy, 824 F.3d 1197, 1206 (9th Cir. 2016) (quoting United States v. DeTar, 832 F.2d 1110, 1113 (9th Cir. 1987)). Brollini's reliance on out-of-circuit authority, United States v. Yashar, 166 F.3d 873 (7th Cir. 1999), does not refute the precedent of the Ninth Circuit. Indeed, the Yashar court acknowledged that the Ninth Circuit, “in a case which did not involve the statute of limitations, ” 166 F.3d at 878, reached a conclusion different than that reached by the Yashar court.

         Here, Brollini is alleged to have engaged in affirmative acts of evasion (e.g., disguising ownership of assets, making payments to the IRS by means of fraudulent checks) within six years of the charging document. While some evasive acts are alleged to have occurred more than six years prior to the filing of the indictment, other acts are alleged to have occurred after that time period. The Court agrees with the conclusion of the magistrate judge that “the limitations period [did] not commence until the last act of evasion.” R & R, p. 6. The Court will overrule this objection.

         Duplicitous ...


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