United States District Court, D. Arizona
K. Jorgenson United States District Judge.
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. 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.
filed objections to the R and R. (Doc. 83). The government
has filed a response (Doc 85).
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 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.”)
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
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 . . .”).
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.
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.
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