United States District Court, D. Arizona
K. Jorgenson United States District Judge.
March 8, 2019, Magistrate Judge Bruce G. Macdonald issued a
Report and Recommendation (“R&R”) (Doc. 520)
in which he recommended this Court modify the supervised
release of Walter Scott Fruit (“Fruit”). Fruit
has filed an Objection to the Report and Recommendation (Doc.
521); the government has not filed a Response.
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
instructions.” 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.”). Further, a district court is not
precluded from conducting a de novo review even if no
objection has been made. Thomas, 474 U.S. at 154.
objects to certain facts in the R&R. Specifically, Fruit
asserts he has not been managing Tucson Profession Steam
Cleaners, LLC (“TPSC”) since the end of 2017 and,
therefore, does not have access to its Wells Fargo account
xxxxxx2524. Further, Fruit asserts his parents, who own TPSC,
closed this Wells Fargo account a few months ago. Lastly,
Fruit asserts he has not received any income from TPSC since
February 2018. In making these objections, Fruit does not
point to any evidence in the record to support his
objections. Indeed, although Fruit submitted a response (Doc.
505) to the government's status report (Doc. 496) and
argued some of the information had changed, Fruit did not
submit any documentation or declaration to support those
arguments. The Court overrules these objections.
of the Magistrate Judge
magistrate judge has recommended Fruit's supervised
release be modified to pay restitution at a rate of not less
than $300 or 10% of the household income, whichever is
greater. He has further recommended additional conditions
that will provide a more accurate profile of Fruit's
financial situation going forward. Although neither party has
objected to this recommendation, the Court has conducted a de
novo review of the documents and arguments presented by the
Fruit argues his earning and spending history is not relevant
to a current monthly restitution amount, the Court disagrees.
Such history is relevant to assist in ascertaining
Fruit's financial assets (e.g., possible interest in
TPSC) and mental state (e.g., undisclosed bank accounts;
ex-fiancé withdrawing significant funds from
Fruit's accounts; use of funds for discretionary expenses
rather than restitution).
Court finds a preponderance of evidence establishes Fruit has
a history of intending to hide and/or commingle funds.
See generally, 18 U.S.C. § 3664(e) (dispute to
be resolved by preponderance of evidence). However,
considering Fruit's stated financial assets, earning and
spending history, and mental state, the preponderance of
evidence does not establish that Fruit currently has the
financial assets to pay more than $300.00 per month towards
the restitution award. The Court agrees, therefore, with the
conclusions reached by the magistrate judge.
Court has consulted with Probation Officer Bill Grajeda
regarding the proposed new conditions of Supervised Release.
IT IS ORDERED:
Report and Recommendation (Doc. 520) is ADOPTED in part.
Fruit's term of supervised release is ...