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United States v. Whitlow

United States District Court, D. Nebraska

September 23, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
THOMAS WHITLOW, Defendant.

ORDER

JOHN M. GERRARD, District Judge.

This matter is before the Court on correspondence from the defendant that the Court has filed as a motion to dismiss (filing 116), the government's Motion to Take Depositions (filing 131), and the Magistrate Judge's Findings, Recommendation, and Order (filing 199) recommending that the defendant's motion be denied and the government's motion granted. The time for objecting to the Magistrate Judge's findings and recommendation has elapsed. See NECrimR 59.2(a); see also, Fed. R. Crim. P. 45; NECrimR 45.1. No objection has been filed.

28 U.S.C. ยง 636(b)(1) provides for de novo review only when a party has objected to the Magistrate Judge's findings or recommendations. Peretz v. United States, 501 U.S. 923 (1991); see Fed. R. Crim. P. 59(b)(2). Failure to object to a finding of fact in a Magistrate Judge's recommendation may be construed as a waiver of the right to object from the district court's order adopting the recommendation of the finding of fact. NECrimR 59.2(e); see Fed. R. Crim. P. 59(b)(2). The Magistrate Judge's order advised the parties that failure to object to the findings and recommendation may be held to be a waiver of the right to appeal the Court's adoption of the recommendation. See filing 199 at 22. And the failure to file an objection eliminates not only the need for de novo review, but any review by the Court. Thomas v. Arn, 474 U.S. 140 (1985); Leonard v. Dorsey & Whitney LLP, 553 F.3d 609 (8th Cir. 2009); see also United States v. Meyer, 439 F.3d 855, 858-59 (8th Cir. 2006). Accordingly, the Court deems any objection to the Magistrate Judge's findings and recommendation waived, and will adopt the findings and recommendation.

IT IS ORDERED:

1. The Magistrate Judge's Findings, Recommendation, and Order (filing 199) are adopted.
2. The defendant's motion to dismiss (filing 116) is denied.
3. The government's Motion to Take Depositions (filing 131) is granted, pursuant to the procedures set forth in the Magistrate Judge's order.

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