United States v. Demetrius Ramos ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10184
Plaintiff-Appellee, D.C. No.
4:20-cr-00051-
v. JAS-DTF
DEMETRIUS VERARDI RAMOS,
AKA Demetrius Ramos, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
James Alan Soto, District Judge, Presiding
Argued and Submitted November 18, 2022
Phoenix, Arizona
Filed April 10, 2023
Before: Jay S. Bybee, John B. Owens, and Daniel P.
Collins, Circuit Judges.
Opinion by Judge Owens;
Partial Concurrence and Partial Dissent by Judge Collins
2 UNITED STATES V. RAMOS
SUMMARY *
Criminal Law
The panel affirmed the district court’s denial of
Demetrius Verardi Ramos’s motion to suppress his post-
arrest statements in a case in which a jury convicted Ramos
of one count of conspiracy to transport, for profit,
noncitizens who have entered or remain in the United States
unlawfully; four counts of harboring such noncitizens for
profit; and three counts of transportation of such noncitizens
for profit.
Ramos argued that his statements were involuntary
because, just prior to the interrogation, an agent had shown
him a plastic baggie containing drugs and threatened him
with drug charges if he did not cooperate. After holding an
evidentiary hearing, a magistrate judge issued a report
recommending that the district court deny the motion to
suppress.
The panel held that the district court did not abuse its
discretion by wholly adopting the magistrate judge’s report
and recommendation. The panel wrote that the district court
did what the Federal Magistrates Act requires: it indicated
that it reviewed the record de novo, found no merit to
Ramos’s objections, and summarily adopted the magistrate
judge’s analysis in his report and recommendation. The
panel emphasized that this court presumes that district courts
conduct proper de novo review where they state they have
done so, even if the order fails to specifically address a
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. RAMOS 3
party’s objections. Rejecting Ramos’s assertion that the
district court’s “bare assertion” that it reviewed de novo is
insufficient because the order was “mere boilerplate” and
failed to address his specific objections, the panel noted that
the district court asserted it conducted de novo review not
only in its order adopting the magistrate judge’s report and
recommendation, but also in its order denying the motion for
reconsideration. More importantly, the district court had no
obligation to provide individualized analysis of each
objection. Because the district court said it independently
reviewed the record and there is no evidence indicating
otherwise, the panel had no reason to second-guess its
assertion of de novo review.
On the merits, Ramos contended that the district court
erred in denying the motion to suppress because it
mistakenly adopted the magistrate judge’s “improper
speculation regarding the contents of the baggie shown to”
Ramos when he was detained. The panel disagreed. The
magistrate judge did not, nor was he required to, make a
proposed finding about the baggie; rather, he only had to
consider whether Ramos’s “will was overborne” under the
totality of the circumstances. The panel wrote that, after
observing the implausibility of Ramos’s testimony and
considering Ramos’s verbal and signed Miranda waiver,
age, education level, and fluency in English, the magistrate
judge properly recommended finding the statements made
during the interrogation voluntary. Moreover, the panel
could not hold that the magistrate judge was wrong to reject
Ramos’s testimony, as the report and recommendation
provided ample reason to find Ramos not credible, and the
rest of the record supports the magistrate judge’s
analysis. The video footage does not clearly show the
contents of the baggie, and two agents denied ever
4 UNITED STATES V. RAMOS
threatening Ramos. Because there are two permissible
views of the evidence, the magistrate judge’s choice between
them, with which the district court agreed, cannot be clearly
erroneous.
The panel addressed Ramos's challenges to the denial of
his motion to suppress evidence on Miranda grounds and to
a special condition of his supervised release in a
concurrently filed memorandum disposition, in which it
affirmed in part and vacated and remanded in part.
Judge Collins concurred in the judgment in part and
dissented in part. He concurred in the court's accompanying
unpublished memorandum disposition. He dissented from
the majority's conclusion that the district court properly
denied the motion to suppress insofar as it was directed at
Ramos's confession in jail after his arrest. He wrote that a
presumption that the district court conducted a proper de
novo review is not warranted here because (1) the magistrate
judge’s report contains an obvious factual error concerning
a critical issue and the error was raised in Ramos’s
objections; (2) there are good reasons to suspect the district
court’s order adopting the magistrate judge’s report here is,
for all practical purposes, a 4½-page rubberstamp; (3) this
court has previously admonished the same district judge for
using boilerplate orders in ruling on objections to magistrate
judges’ reports, but to no avail; (4) the underlying issue here
is one of constitutional dimension; and (5) the panel cannot
say that the error was harmless. He would remand with
instructions to re-examine the matter and, if warranted, to
grant a new trial.
UNITED STATES V. RAMOS 5
COUNSEL
Elizabeth J. Kruschek (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender, District
of Arizona; Federal Public Defender’s Office; Phoenix,
Arizona; for Defendant-Appellant.
Robert L. Miskell (argued), Shelley K.G. Clemens, and
Terry M. Crist III, Assistant United States Attorneys;
Christina M. Cabanillas, Deputy Appellate Chief; Gary M.
Restaino, United States Attorney, District of Arizona; Office
of the United States Attorney; Tucson, Arizona; for Plaintiff-
Appellee.
6 UNITED STATES V. RAMOS
OPINION
OWENS, Circuit Judge:
Defendant-Appellant Demetrius Ramos appeals from his
jury conviction and sentence for one count of conspiracy to
transport, for profit, noncitizens who have entered or remain
in the United States unlawfully, four counts of harboring
such noncitizens for profit, and three counts of transportation
of such noncitizens for profit, all in violation of 8 U.S.C.
§ 1324. We have jurisdiction under 28 U.S.C. § 1291 and
affirm. 1
I. BACKGROUND
A. Arrest and Interrogation
On December 3, 2019, U.S. Border Patrol agents stopped
Ramos in his vehicle in the border town of Douglas, Arizona
and arrested him for transporting noncitizens under 8 U.S.C.
§ 1324. The agents placed Ramos in a holding cell after
arriving at the Border Patrol station. While getting
fingerprinted, Ramos asked Agent Daniel Regan to retrieve
his prescription medication located inside his vehicle.
Based on video footage, which contains no audio, Agent
Robert Marrufo visited Ramos inside his holding cell at
around 3:40 a.m. About forty minutes later, the video
footage shows Agent Marrufo returning to the holding cell,
showing Ramos a plastic baggie, and having a short
1
We address Ramos’s challenges to the denial of his motion to suppress
evidence on Miranda grounds and to a special condition of his
supervised release in a concurrently filed memorandum disposition, in
which we affirm in part and vacate and remand in part.
UNITED STATES V. RAMOS 7
discussion with him. The video then shows Agent Marrufo
leaving the cell, followed by Ramos.
Shortly thereafter, Agents Marrufo and Jesus Barron
conducted a Mirandized interview in an interrogation room.
The agents encouraged Ramos to tell the truth, saying that
“honesty goes a long way” and that “[t]here’s an old saying
[that] the truth will set you free.” When asked about the
events that had led up to his arrest, Ramos admitted he was
offered $1,000 per person to transport people from Douglas
to Phoenix but claimed that he was not aware that the
passengers were undocumented. He also stated that he had
transported people for pay on “many” occasions prior and
that he was instructed to buy a separate phone for this
purpose.
When asked about his citizenship status, Ramos
confirmed that he was a Brazilian citizen and had overstayed
his visa. Ramos expressed concern for himself and his
family, telling the agents that he “[didn’t] want to get
deported.”
Multiple times throughout the interrogation, Ramos
attempted to negotiate with the agents, asking them for help
in return for his cooperation. Ramos claimed that he knew
“the bosses of this area” and that he was a “big piece of the
puzzle.” He also expressed a willingness to “get further
information” for the agents. In response to Ramos’s
repeated attempts to cut a deal, the agents reiterated that they
could not make any promises and that the “only thing [they
could] do . . . is to take down the information” from the
interrogation and relay it to someone else. Ramos asked the
agents to “[l]et [him] talk to somebody else then.” When
Agent Barron tried to conclude the interrogation, the
following exchange took place:
8 UNITED STATES V. RAMOS
BPA BARRON: So all the statements that
you made today were voluntarily? Were you
forced or coerced during your declaration?
Did we force you to talk? Did we force you
to say anything?
MR. RAMOS: No, but I thought that I was
going to get --
BPA BARRON: All right.
MR. RAMOS: -- something in return.
BPA BARRON: Okay. So all the questions
that you basically stated were voluntarily?
SBPA MARRUFO: Yes or no?
MR. RAMOS : I -- kind of, man, but I
thought I was going to get something in
return. I thought I was going to --
SBPA MARRUFO: No. Like I -- like I told
you, I never -- we never promised you
anything.
MR. RAMOS: You kind of did. You said,
hey, man, this stuff, I’m going to take it, you
just tell the truth.
After the agents again reminded Ramos that they “never
promised [him] anything,” Ramos offered to give them “all
the information” and to wear a “bug.”
The agents ended the interrogation at 5:14 a.m. During
the nearly hour-long interview, no one mentioned the plastic
baggie that Agent Marrufo had held during his second visit
to the holding cell.
UNITED STATES V. RAMOS 9
B. Motion to Suppress and Evidentiary Hearing
After his indictment, Ramos moved to suppress, among
other things, his statements made during the interrogation.
He argued that his statements were involuntary because, just
prior to the interrogation, Agent Barron had shown him a
plastic baggie containing drugs and threatened him with drug
charges if he did not cooperate. In its response to the motion,
the government denied that such a conversation ever took
place.
The magistrate judge held an evidentiary hearing
regarding the motion to suppress, at which the parties offered
conflicting testimony. With regards to the events leading up
to his arrest, Ramos testified that his friend “Gabriel” had
offered him a flat rate of $1,000 to pick up passengers and
take them Christmas shopping. Ramos initially testified that
“Gabriel” asked him to take the passengers from Douglas to
Phoenix, but later changed his story, claiming that he was
planning on taking them to Tucson, where they would sleep
overnight, go Christmas shopping the next morning, and
then return to Douglas. Ramos also claimed that “Gabriel”
provided him a separate cellphone for the job because it was
“easier to communicate with [the] same cellphone
company.” According to Ramos, “Gabriel” asked him to
pick up the passengers since Uber “didn’t do that anymore
because it’s close to the border.” When asked on cross-
examination why he claimed to know the “bosses of this
area” during his interrogation, Ramos testified that he had
been exaggerating and lying to ensure that he went home that
night.
10 UNITED STATES V. RAMOS
Ramos also testified about the video footage of his
holding cell. He claimed that Agent Barron 2 came to his
holding cell and told him that he would have to talk to the
agents or else it was “going to be very bad” for him.
According to Ramos, Agent Barron promised Ramos that he
could go home that night if he cooperated with the agents.
Ramos also testified that, about half an hour later, Agent
Barron returned with a plastic baggie containing a substance
that tested positive for drugs and said that, because they
found the baggie in Ramos’s car, they could “use it” against
him if he did not cooperate with the agents. Immediately
thereafter, Agent Barron allegedly asked Ramos whether he
would be willing to talk to the agents, to which Ramos
agreed.
The government offered a different account of that
evening and the plastic baggie. Without having watched the
video footage, Agent Marrufo claimed that he—not Agent
Barron—visited Ramos in the holding cell. Regarding the
first interaction in the holding cell, Agent Marrufo testified
that he went to conduct a welfare check and to verify
Ramos’s identity after discovering that he was a Brazilian
citizen who had overstayed his visa. Regarding the second
interaction in the holding cell, Agent Marrufo testified that
he did not remember having a baggie in his hand.
Agent Barron also testified at the suppression hearing
and claimed that he never made any threats to Ramos or
forced Ramos to cooperate.
2
Ramos originally testified that Agent Barron visited him in the holding
cell. On appeal, the parties do not dispute that the agent who visited
Ramos was Agent Marrufo.
UNITED STATES V. RAMOS 11
C. The Magistrate Judge’s Report and
Recommendation
After the evidentiary hearing, the magistrate judge issued
a twenty-page report recommending that the district court
deny Ramos’s motion to suppress. In so recommending, the
magistrate judge explained why he did not find Ramos’s
testimony credible. First, the magistrate judge noted that
Ramos contradicted himself throughout his testimony and
“told an untenable story.” For example, Ramos initially
testified that he was taking the passengers Christmas
shopping in Phoenix but then later claimed they were headed
to Tucson, where the passengers would sleep overnight and
go shopping the next day. The magistrate judge also noted
that Ramos’s story seemed implausible given that he did not
have his driver’s license and was wearing hospital scrubs on
the night of his arrest. Second, the magistrate judge
observed that Ramos’s “demeanor was not that of an honest
but nervous witness, but instead was that of a fabricator.”
Third, the magistrate judge opined that Ramos’s claim that
his confession was coerced was inconsistent with his
demeanor and numerous attempts to negotiate with the
agents during the interrogation.
By contrast, the magistrate judge observed that the
agents’ testimony credible and consistent with the
interrogation transcript. Addressing the plastic baggie, the
magistrate judge wrote in a footnote that “[t]he Government
does not explain the bag, but there are alternative
explanations. The most likely of which is that the bag
contained medicine Defendant had requested.” The
magistrate judge also considered Ramos’s age, education
level, fluency in English, over ten years of residency in the
United States, and access to food and water the night of his
interrogation. Based on the totality of these circumstances,
12 UNITED STATES V. RAMOS
the magistrate judge recommended finding that Ramos’s
confession was voluntary.
Ramos timely filed objections to the magistrate judge’s
report and recommendation. In objecting to the magistrate
judge’s finding on voluntariness, Ramos reiterated that his
interrogation had been coerced and argued that the
magistrate judge had improperly speculated about the
contents of the baggie, thereby relieving the government of
its burden of proof.
D. The District Court’s Orders Regarding the
Motion to Suppress
The district court adopted the magistrate judge’s report
and recommendation in its entirety. In its order, the district
court wrote, “Upon de novo review of the record and
authority herein, the Court finds Defendant’s objections to
be without merit [and] rejects those objections . . . .”
In response to the district court’s order adopting the
magistrate judge’s report and recommendation, Ramos filed
a three-page motion for reconsideration. Without citing any
authority, Ramos argued that the district court failed to
conduct de novo review because the order did not discuss
any facts or points of law. He also noted that the district
court addressed “waiver” even though, according to Ramos,
the case raised no waiver issue. The motion for
reconsideration made no mention of the baggie.
The district court denied the motion for reconsideration,
reiterating that it did conduct de novo review. The court
noted that “‘[i]t is common practice among district judges
. . . to [issue a terse order stating that it conducted a de novo
review as to objections] . . . and adopt the magistrate judges’
recommended dispositions when they find that magistrate
UNITED STATES V. RAMOS 13
judges have dealt with the issues fully and accurately and
that they could add little of value to that analysis.’ Garcia v.
City of Albuquerque, 232 F.3d 760 (10th Cir. 2000)”
(alteration in original).
E. Trial and Sentencing
The case proceeded to trial, where Agent Marrufo was
shown video footage of the holding cell for the first time.
After watching the footage, Agent Marrufo testified that he
never showed Ramos a baggie “per se” and that, if he had
one in his hand during their conversation, he was “doing
something else with it.” He also testified that he never
threatened Ramos with drug charges. When asked to
identify the bag, Agent Marrufo stated that it looked like an
“evidence bag.” According to Agent Marrufo, he had
handled “a lot of evidence that night” and speculated that he
was going to drop off the evidence after visiting Ramos’s
cell but prior to going to the interrogation room. When
defense counsel asked Agent Marrufo to identify the “white
stuff on the bottom of that bag,” he was unable to do so,
claiming that he could barely see the bag, “let alone what’s
in the bag.”
The jury convicted Ramos on eight counts: one count of
conspiracy to transport, for profit, noncitizens who have
entered or remain in the United States unlawfully, four
counts of harboring such noncitizens for profit, and three
counts of transportation of such noncitizens for profit, all in
violation of 8 U.S.C. § 1324. At sentencing, the district
court imposed concurrent terms of four months in custody
and four months of home detention. The district court also
placed Ramos on three years of supervised release subject to
special conditions. Ramos timely appealed.
14 UNITED STATES V. RAMOS
II. DISCUSSION
A. Standard of Review
We review a district court’s adoption of a magistrate
judge’s report and recommendation for abuse of discretion.
Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002). “A district
court abuses its discretion when it fails to apply the correct
legal standard or bases its decision on unreasonable findings
of fact.” Briseño v. Henderson, 998 F.3d 1014, 1022 (9th
Cir. 2021) (cleaned up); see also United States v.
Manchester Farming P’ship, 315 F.3d 1176, 1181 (9th Cir.
2003). Under this highly deferential standard, we must
uphold “a district court’s determination that falls within a
broad range of permissible conclusions, provided the district
court did not apply the law erroneously.” Lam v. City of San
Jose, 869 F.3d 1077, 1084 (9th Cir. 2017) (citation omitted).
We review the voluntariness of a confession de novo and any
underlying factual findings for clear error. United States v.
Heller, 551 F.3d 1108, 1112 (9th Cir. 2009).
B. The District Court Did Not Abuse its Discretion
by Wholly Adopting the Magistrate Judge’s
Report and Recommendation
Under the Federal Magistrates Act, a district court may
designate a magistrate judge to conduct an evidentiary
hearing and submit proposed findings of fact and
recommendations for the disposition of a motion to suppress.
28 U.S.C. § 636(b)(1)(B). Within fourteen days, any party
may file written objections to the report. Id. § 636(b)(1)(C).
If an objection is made, the district court “shall make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” Id.; see also Fed. R. Civ. P. 72(b)(3);
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
UNITED STATES V. RAMOS 15
2003) (“[T]he district judge must review the magistrate
judge’s findings and recommendations de novo if objection
is made, but not otherwise.”). After conducting de novo
review, the district court “may accept, reject, or modify, in
whole or in part, the findings or recommendations made by
the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). “In
providing for a de novo determination . . . Congress
intended to permit whatever reliance a district judge, in the
exercise of sound judicial discretion, chose to place on a
magistrate’s proposed findings and recommendations.”
United States v. Raddatz, 447 U.S. 667, 676 (1980) (internal
quotation marks omitted).
Under this statutory scheme, the district court did what
§ 636(b) requires: it indicated that it reviewed the record de
novo, found no merit to Ramos’s objections, and summarily
adopted the magistrate judge’s analysis in his report and
recommendation. We have presumed that district courts
conduct proper de novo review where they state they have
done so, even if the order fails to specifically address a
party’s objections. See Wang v. Masaitis, 416 F.3d 992,
1000 (9th Cir. 2005) (holding that “[t]here [was] no reason
to question the de novo review done by” the district court
based on an order stating it “reviewed the Petition and other
papers along with the attached Report and Recommendation
. . . as well as petitioner’s objections and respondent’s
response to petitioner’s objections, and has made a de novo
determination”); Holder v. Holder, 392 F.3d 1009, 1022 (9th
Cir. 2004) (“The district court expressly stated in its order
that it adopted the magistrate judge’s recommendations only
after having undertaken a de novo review of the record . . . .
The district court’s approach fully complied with the
statutory requirements in using the magistrate judge’s
assistance in this case.”); N. Am. Watch Corp. v. Princess
16 UNITED STATES V. RAMOS
Ermine Jewels, 786 F.2d 1447, 1450 (9th Cir. 1986) (holding
that the district court satisfied de novo review because it
provided a statement that it had reviewed the record and
magistrate judge’s report and recommendation before
reaching its conclusion). 3
3
We have also upheld similar district court orders in unpublished cases.
See, e.g., United States v. Drapel, 418 F. App’x 630, 630-31 (9th Cir.
2011); Brook v. McCormley, 837 F. App’x 433, 435-36 (9th Cir. 2020);
Payne v. Marsteiner, No. 21-55296, 2022 WL 256357, at *1 (9th Cir.
Jan. 26, 2022).
Additionally, our sister circuits have upheld district court orders that
adopt the magistrate judge’s report and recommendation without
additional analysis of case-specific facts or law. See, e.g., Elmendorf
Grafica, Inc. v. D.S. Am. (E.), Inc., 48 F.3d 46, 49-50 (1st Cir. 1995)
(noting that the appellant had “called no authority to [the court’s]
attention holding that, in order to demonstrate compliance with § 636’s
de novo requirement, a district court must make findings and rulings of
its own rather than adopting those of the magistrate judge”); Murphy v.
Int’l Bus. Machs. Corp., 23 F.3d 719, 722 (2d Cir. 1994) (per curiam)
(“We do not construe the brevity of the order [adopting the magistrate
judge’s report] as an indication that the objections were not given due
consideration, especially in light of the correctness of that report and the
evident lack of merit in [the plaintiff’s] objections.”); United States v.
Jones, 22 F.4th 667, 679 (7th Cir. 2022) (noting that district courts may
fulfill their obligation under § 636 by informing the appellate court that
they conducted de novo review and that “in some cases, a district court
may even adopt the magistrate’s report and recommendation in its
entirety without writing its own opinion”); Gonzales-Perez v. Harper,
241 F.3d 633, 636-37 (8th Cir. 2001) (rejecting the plaintiff’s argument
that the district court failed to conduct de novo review of the record
because its order did not address all arguments); Garcia v. City of
Albuquerque, 232 F.3d 760, 766 (10th Cir. 2000) (“[N]either 28 U.S.C.
§ 636(b)(1) nor Fed. R. Civ. P. 72(b) requires the district court to make
any specific findings; the district court must merely conduct a de novo
review of the record.”).
UNITED STATES V. RAMOS 17
Only in limited circumstances have we questioned a
district court’s de novo review of a magistrate judge’s report
and recommendation. For example, we have reversed and
remanded district court orders adopting the magistrate
judge’s recommendation because it was clear that the district
court failed to conduct review on the whole record. See
United States v. Remsing, 874 F.2d 614, 616-18 (9th Cir.
1989) (reversing and remanding because the transcript of the
evidentiary hearing was unavailable when the district court
conducted its review); Orand v. United States, 602 F.2d 207,
209 (9th Cir. 1979) (reversing and remanding because, in
part, the “stenographic notes from the magistrate’s hearing
were not fully transcribed until . . . three months after the
district court adopted the magistrate’s report and
recommendation”). We have also vacated and remanded the
district court’s order where it clearly applied the wrong
standard of review. See CPC Pat. Techs. Pty Ltd. v. Apple,
Inc., 34 F.4th 801, 810 (9th Cir. 2022) (vacating and
remanding a district court order because it expressly
reviewed the magistrate judge’s decision for clear error
rather than de novo).
Ramos argues that this is one of those limited
circumstances where we should question the district court’s
repeated assertions that it conducted de novo review.
According to Ramos, the district court’s “bare assertion” that
it reviewed de novo is insufficient because the order was
“mere boilerplate” and failed to address his specific
objections. But the district court asserted that it conducted
de novo review not only in its order adopting the magistrate
judge’s report and recommendation, but also in its order
denying the motion for reconsideration.
More importantly, as discussed above, the district court
had no obligation to provide individualized analysis of each
18 UNITED STATES V. RAMOS
objection. See Wang, 416 F.3d at 1000 (affirming a cursory
district court order summarily adopting, without addressing
any objections, a magistrate judge’s report and
recommendation); Holder, 392 F.3d at 1022 (holding that
the district court’s approach “fully complied with the
statutory requirements” because it “expressly stated in its
order that it adopted the magistrate judge's recommendations
only after having undertaken a de novo review of the record,
the Second Report and Recommendation, Jeremiah's
objections, and Carla's responses”); N. Am. Watch Corp.,
786 F.2d at 1450 (holding that the district court “satisfied the
de novo standard of 28 U.S.C. § 636” by noting it had
“reviewed the complaint, counter-complaints, all the records
and files, . . . and the . . . Report and Recommendation of the
United States Magistrate”).
The cases on which Ramos relies for this point are
inapposite. Two of the three cited cases involved new claims
raised for the first time in a party’s objections to the
magistrate judge’s report and recommendation. See Brown,
279 F.3d at 745 (holding that the district court abused its
discretion by failing to address the pro se habeas petitioner’s
equitable tolling argument raised for the first time in his
objections to the magistrate judge’s report and
recommendation (citing United States v. Howell, 231 F.3d
615, 622 (9th Cir. 2000)); United States v. Cha, 597 F.3d
995, 1003 n.7 (9th Cir. 2010) (holding that the district
court’s “boilerplate language” was not enough when
addressing the government’s waiver argument raised for the
first time in its objections). By contrast, Ramos’s
objection—that the magistrate judge erred in finding that he
was not threatened with the baggie and drug charges—is a
UNITED STATES V. RAMOS 19
reformulation of his argument from his motion to suppress. 4
The third (unpublished) case Ramos cites is also
distinguishable because, there, the magistrate judge failed to
address one of the defendant’s arguments in his report and
recommendation. United States v. Jones, 837 F. App’x 423,
424 (9th Cir. 2021). But here, Ramos does not contend that
the report and recommendation itself failed to address an
argument raised in his motion to suppress.
The dissent agrees with Ramos that the district court’s
order was procedurally deficient and believes that the district
court failed to conduct de novo review, as evidenced by the
“rubberstamp” order. Dissent at 33-35. But, like Ramos, the
dissent cites no caselaw from any court requiring the district
court to provide more analysis or case-specific reasoning
when summarily adopting a magistrate judge’s report and
recommendation, absent newly raised objections. The only
evidence that the dissent cites is the district court’s nearly
identical orders in other cases. Dissent at 34-35. The dissent
finds it of no matter that the district court confirmed not only
once (in its order adopting the magistrate judge’s report and
recommendation) but twice (in its order denying Ramos’s
motion for reconsideration) that it conducted de novo review
of the case. When the district court said it independently
reviewed the record and there is no evidence indicating
4
Ramos raised an additional objection, arguing that the magistrate judge
made an improper inference about the contents of the plastic baggie,
thereby relieving the government of its burden of proof. But, as we
explain below, the magistrate judge did no such thing. The magistrate
judge noted that the government did not explain the bag but listed the
many factors on which the government relied to prove the confession
was voluntary by a preponderance of the evidence.
20 UNITED STATES V. RAMOS
otherwise, we have no reason to second-guess its assertion
of de novo review. 5 See Wang, 416 F.3d at 1000.
C. The District Court Did Not Err in Denying
Ramos’s Motion to Suppress on Voluntariness
Grounds
Turning to the merits, Ramos contends that the district
court erred in denying his motion to suppress because it
mistakenly adopted the magistrate judge’s “improper
speculation regarding the contents of the baggie shown to
Mr. Ramos when he was detained.” We disagree and affirm
the district court’s denial of Ramos’s motion to suppress his
post-arrest statements and the underlying analysis in the
magistrate judge’s report and recommendation.
The magistrate judge did not, nor was he required to,
make a proposed finding about the contents of the baggie;
rather, he only had to consider whether Ramos’s “will was
overborne” under the totality of the circumstances. United
States v. Leon Guerrero, 847 F.2d 1363, 1366 (9th Cir.
1988); see also Lego v. Twomey, 404 U.S. 477, 489 (1972)
(“[T]he prosecution must prove at least by a preponderance
of the evidence that the confession was voluntary.”). After
observing the implausibility of Ramos’s testimony and
5
Ramos’s motion for reconsideration argued that the district court failed
to conduct de novo review because the order adopting the report and
recommendation stated that “as to any new . . . arguments . . . not timely
. . . raised before [the magistrate judge], the Court exercises its discretion
to not consider those matters and considers them waived” even though,
according to Ramos, the case raised no waiver issue. But this argument
misses the point. The fact that the order contained extraneous language
does not negate the district court’s multiple assertions that it conducted
de novo review and the magistrate judge’s proper analysis in
recommending denial of the motion to suppress.
UNITED STATES V. RAMOS 21
considering Ramos’s verbal and signed Miranda waiver,
age, education level, and fluency in English, the magistrate
judge properly recommended finding the statements made
during the interrogation voluntary.
Moreover, we cannot hold that the magistrate judge was
wrong to reject Ramos’s testimony. See United States v.
Nelson, 137 F.3d 1094, 1110 (9th Cir. 1998) (“This court
gives special deference to the district court’s credibility
determinations.”). The magistrate judge’s report and
recommendation provided ample reason to find Ramos not
credible: (1) Ramos contradicted himself throughout his
testimony, such as claiming that he was taking the
passengers to Phoenix but later testifying that their
destination was Tucson; (2) he told an “untenable story”
where he was offered $1,000 to take the passengers
“Christmas shopping,” even though he did not have his
driver’s license and was wearing scrubs on the night of his
arrest; (3) he offered claims that were inconsistent with his
repeated requests during the interrogation asking what the
“agents could do for him”; and (4) the magistrate judge
observed that, during his testimony, Ramos’s “demeanor
was . . . that of a fabricator.” Ramos’s testimony bore many
of the hallmarks of an unreliable witness. See generally
Ninth Circuit Manual of Model Criminal Jury Instructions §
1.7 (2022) (“In considering the testimony of any witness,
you may take into account . . . the witness’s manner while
testifying,” “the witness’s interest in the outcome of the
case,” “whether other evidence contradicted the witness’s
testimony,” and “the reasonableness of the witness’s
testimony in light of all the evidence[.]”).
The rest of the record also supports the magistrate
judge’s analysis. The video footage—the only other piece
of evidence that Ramos cites to support his claim—only
22 UNITED STATES V. RAMOS
confirms that Agent Marrufo had a baggie in his hand when
talking to Ramos. But this footage is without audio and does
not clearly show the contents of the baggie. And, in contrast
to Ramos’s account, Agents Marrufo and Barron denied ever
threatening Ramos. Further, despite extensive back and
forth between Ramos and the agents, the transcript of the
interrogation that immediately followed Agent Marrufo’s
visit makes no mention of the plastic baggie or purported
drug charges. Because there are “two permissible views of
the evidence,” the magistrate judge’s choice between them,
with which the district court agreed, cannot be clearly
erroneous. Anderson v. Bessemer City, 470 U.S. 564, 574
(1985). And without his claim that he was threatened,
Ramos’s “argument that his confession was coerced is
meritless.” United States v. Wolf, 813 F.2d 970, 975 (9th
Cir. 1987).
The dissent argues that the district court’s order denying
the suppression motion was inadequate on the merits
because it relied on a clearly erroneous proposed finding of
fact in the magistrate judge’s report and recommendation:
“that the ‘most likely’ reason why Marrufo had the baggie
was that it contained the medicine that Ramos had
requested.” Dissent at 31. According to the dissent, this
finding was clearly erroneous because Agent Marrufo never
actually gave the baggie to Ramos and Agent Regan testified
that he was the one who gave Ramos his medication. Dissent
at 31. But this mischaracterizes the magistrate judge’s
report, which accurately stated that the government failed to
explain the bag but noted there were “alternative
explanations,” speculating “[t]he most likely of which is that
the bag contained medicine Defendant had requested.”
Furthermore, as discussed above, the magistrate judge was
not required to propose a factual finding about the contents
UNITED STATES V. RAMOS 23
of the bag. The question before the magistrate judge was
whether Ramos’s confession was voluntary, which the
magistrate judge addressed after considering the totality of
the circumstances and rejecting Ramos’s testimony from the
motion to suppress hearing—the only evidence supporting
the allegation of fabricated drug charges.
The dissent’s selective focus on the plastic baggie thus
ignores the actual question that was before the magistrate
judge and district court: whether the confession was
voluntary. Critical to that question was whether Ramos was
credible. By ignoring the magistrate judge’s detailed
analysis finding Ramos not credible, the dissent improperly
discounts the standard of review, which is especially
important in this context: “Deference to the district court’s
factual finding is especially warranted here when the critical
evidence is testimonial; the ‘judge was in the unique position
to observe the demeanor of both [the defendant] and the
police officers while we have only the cold record, which is
sterile by comparison.’” Wolf, 813 F.2d at 975 (quoting
United States v. Hood, 493 F.2d 677, 680 (9th Cir. 1974)).
D. Conclusion
Because the district court was not obligated to explicitly
address Ramos’s objections, we hold that the district court
did not abuse its discretion by adopting the magistrate
judge’s report and recommendation. On the merits, we also
affirm the district court’s denial of the suppression motion
on voluntariness grounds.
AFFIRMED.
24 UNITED STATES V. RAMOS
COLLINS, Circuit Judge, concurring in the judgment in part
and dissenting in part:
I concur in the court’s accompanying unpublished
memorandum disposition, which holds that (1) the district
court properly denied Defendant Demetrius Verardi
Ramos’s motion to suppress insofar as it was directed at the
statements that he made prior to his arrest; and (2) the case
must be remanded so that the written judgment’s description
of supervised release conditions can be properly conformed
to the orally pronounced sentence. But I respectfully dissent
from the majority’s conclusion that the district court
properly denied the motion to suppress insofar as it was
directed at Ramos’s confession in jail after his arrest. As to
that issue, I would instead remand with instructions to re-
examine the matter and, if warranted, to grant Ramos a new
trial.
I
After Ramos was arrested, he was taken to a Border
Patrol Station where agents placed him into a holding cell.
The cell contained a video camera that recorded events
within the cell, but without any audio. The video recording
shows that, at approximately 3:41 AM, Agent Robert
Marrufo visited Ramos’s cell and spoke with him for about
two minutes before leaving. The recording further shows
that, at approximately 4:23 AM, Marrufo returned to
Ramos’s cell. This time, Marrufo spoke with Ramos for
approximately 40 seconds, and for about half of that
conversation, Marrufo was prominently holding out towards
Ramos a clear plastic baggie that contained some substance
at the bottom. Although the video is grainy, the plastic
baggie contained at the top what appears to be a pinkish strip
that is consistent with a Ziploc-type strip. Towards the end
UNITED STATES V. RAMOS 25
of the conversation, Marrufo gestured with his right arm in a
way that seemingly indicated that Ramos should follow him.
At approximately the same time, Ramos moved to grab his
shoes, put them on, and left the cell after Marrufo. Ramos
proceeded to an interview room, where he waived his
Miranda rights and gave a recorded confession.
Both Ramos and Marrufo testified at the suppression
hearing about the content of these two conversations, and
Marrufo also testified about them at trial. Marrufo was not
shown the video recording at the suppression hearing, but he
was shown it at trial. As to Marrufo’s first visit, Ramos
testified that Marrufo told him that if he did not cooperate
with the agents, “it’s going to be very bad for you,” but that
if Ramos cooperated, then he would be released that night.1
Marrufo testified that he first visited Ramos to “check up on
him,” given that Ramos had been very distraught at the time
of his arrest. Marrufo stated that, during this initial visit, he
also told Ramos that they knew that he was a Brazilian who
was unlawfully in the U.S. and that it would be helpful for
Ramos to tell the truth. Marrufo specifically denied that he
said anything about Ramos being released that night, and he
denied making any promises to Ramos.
As to the second visit, Ramos testified that Marrufo said
that the baggie contained drugs that had been found in
Ramos’s car and that, if he did not cooperate, he would be
charged with drug trafficking and “[t]hat’s going to give you
1
In response to a leading question from his own counsel, Ramos
mistakenly agreed that the agent who visited him was “Agent Barron”
(who had also been involved in Ramos’s arrest) rather than Agent
Marrufo. All parties agree that the agent in the video is Marrufo. The
magistrate judge did not rely on this error in explaining why he found
Ramos not to be credible.
26 UNITED STATES V. RAMOS
years in prison.” Ramos said that Marrufo reiterated that, “if
you talk to us you can go home tonight.” According to
Ramos, Marrufo asked him to agree to an interview right
away, saying, “Come over here with us.” At the suppression
hearing, Marrufo testified that he did not remember whether
he had brought a baggie with him to Ramos’s cell, but he
affirmatively denied telling Ramos that drugs had been
found in his vehicle, and he denied threatening him with
drug charges. In cross-examining Marrufo at the
suppression hearing, the prosecutor elicited an affirmative
response to a question about whether, as part of a “welfare
check,” Marrufo sometimes brought food in baggies. In
redirect examination, defense counsel asked point blank
whether Marrufo had given Ramos food in his cell, and
Marrufo said, “I didn’t give him any food.” Defense counsel
then asked, “So if you didn’t ever give him food, why would
you have a baggie in your hand?” Marrufo responded, “I
don’t recall if I had a baggie in my hand or not.”
At trial, Marrufo was again asked about the second visit,
and—before he had seen the video recording of the second
visit—he testified that “I didn’t show him a baggie. If I had
one in my hand, then I had it in my hand because I was doing
something else with it, but it wasn’t to show him a baggie.”
Marrufo again denied threatening Ramos with drug charges,
stating, “He didn’t have any drugs in his possession, why
would I charge him with drugs?” After being shown the
recording, Marrufo said that the baggie “looks like an
evidence bag,” and he noted that Ramos’s cell was “en route
to the evidence locker.”
Ramos moved to suppress his confession on the ground,
inter alia, that it was involuntarily given in response to the
threat that he would be falsely charged with a drug crime.
The evidentiary hearing on the motion to suppress was held
UNITED STATES V. RAMOS 27
before a magistrate judge, who prepared a report under 28
U.S.C. § 636 recommending that the motion be denied. The
magistrate judge gave numerous reasons for finding Ramos
not to be credible, including that many aspects of his overall
testimony and statements were “not plausible” and that “his
demeanor was not that of an honest but nervous witness, but
instead was that of a fabricator.” As to the conflicting
testimony about a baggie, the magistrate stated: “The
Government does not explain the bag, but there are
alternative explanations. The most likely of which is that the
bag contained medicine Defendant had requested.” This
comment was apparently a reference to the fact that Agent
Daniel Regan had testified at the suppression hearing that, at
one point, Ramos requested prescription medication that was
in his car at the time of his arrest, and Regan retrieved it for
him.
Ramos filed timely objections to the magistrate’s report.
On the voluntariness issue, Ramos’s objection emphasized
the “PLASTIC BAGGIE,” which he referenced in all capital
letters. After noting that the magistrate judge conceded that
“the government could not explain the bag,” Ramos argued
that the magistrate judge engaged in an “extraordinary act of
speculation” by positing an explanation that the Government
itself had not offered, namely that “the bag likely contained
medicine that the Defendant had requested.” Ramos argued
that a “viewing of the video of the bag does not support it
containing medicine or pill bottles or anything but powder
on the bottom of the bag.” Ramos further argued:
The video shows Border patrol Agent
Mar[r]ufo showing Mr. Ramos a bag
containing some sort of powder on the
bottom of the bag. Agent Mar[r]ufo
28 UNITED STATES V. RAMOS
conveniently has no recollection. For some
reason, the Magistrate Judge goes out of his
way to present a reason for the baggie that is
not supported in the evidence.
In a boilerplate order, the district court overruled the
objections and adopted the magistrate judge’s report. Ramos
moved for reconsideration, complaining that the district
court’s order was bereft of any discussion of the facts or the
issues of Ramos’s motion and that, in his view, the district
judge had failed to conduct the de novo review required by
the statute. The district court denied the motion. Well more
than half of the text of that order consists of verbatim
quotations from the prior order adopting the magistrate’s
report. The remainder consists of conclusory assertions that
the district judge reviewed everything and conducted a de
novo review. The relevant text of the order denying
reconsideration—like the prior order adopting the magistrate
judge’s report—contains no mention whatsoever of any of
the case-specific facts or legal issues raised by Ramos’s
motion or by his objections to the magistrate judge’s report.
II
In my view, the district judge’s failure to discuss any of
the issues raised by Ramos’s motion to suppress or by
Ramos’s objections to the magistrate judge’s report is
unacceptable and warrants remand.
In defining what types of pretrial motions a magistrate
judge is empowered to resolve in the first instance, the
relevant statute specifically excludes a motion “to suppress
evidence in a criminal case.” 28 U.S.C. § 636(b)(1)(A).
Instead, with respect to a defense motion to suppress, a
magistrate judge is only authorized, if designated by the
UNITED STATES V. RAMOS 29
district judge, “to conduct hearings, including evidentiary
hearings, and to submit to a judge of the court proposed
findings of fact and recommendations for the disposition, by
a judge of the court,” of that motion. Id. § 636(b)(1)(B). The
statute further provides that “[w]ithin fourteen days after
being served with a copy” of the magistrate judge’s report,
“any party may serve and file written objections to such
proposed findings and recommendations as provided by
rules of court.” Id. § 636(b)(1). If such objections are timely
filed, then a district “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.” Id. (emphasis added); see also FED. R. CIV. P.
72(b)(3).
We have held that, in some cases, a district judge may
satisfy the required statutory de novo review by including,
in the order ruling on the parties’ objections, an unadorned
statement that he or she has adopted the magistrate judge’s
report after fully considering the record, the report, and the
parties’ objections to the report. See, e.g., North Am. Watch
Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1450 (9th
Cir. 1986). But “[b]ecause there is a concern that a district
judge may nevertheless be tempted on occasion to rubber
stamp the recommendation of a magistrate, the courts of
appeal[s] have responsibility to ensure that the district judge
has taken the task of de novo review seriously.” See 12 C.A.
WRIGHT, A. MILLER, & R. MARCUS, FEDERAL PRACTICE AND
PROCEDURE § 3070.2, p. 453 (3d ed. 2014). That
responsibility is all the more important when, as here, the
district judge’s conclusory statement that a de novo review
was conducted is unaccompanied by any case-specific
reasoning whatsoever. Cf. United States v. Jones, 22 F.4th
667, 679 (7th Cir. 2022) (upholding district judge’s adoption
30 UNITED STATES V. RAMOS
of magistrate judge’s report in a brief order that did contain
case-specific discussion of objections (referencing United
States v. Jones, 2020 WL 2507927 (N.D. Ind. May 15,
2020)). Thus, while we should “normally presume that the
district court has made such a de novo review,” that
presumption should not apply if “affirmative evidence
indicates otherwise.” United States v. Romano, 794 F.3d
317, 340 (2d Cir. 2015) (simplified); see also Gonzalez-
Perez v. Harper, 241 F.3d 633, 636 (8th Cir. 2001) (stating
that the court will presume that the district judge conducted
a proper de novo review “absent evidence to the contrary”).
For several reasons, such a presumption is not warranted
here. 2
First, the magistrate judge’s report contains an obvious
factual error concerning a critical issue and the error was
raised in Ramos’s objections. Cf. Murphy v. IBM Corp., 23
F.3d 719, 722 (2d Cir. 1994) (noting that the “correctness of
the report” in that case was a factor that confirmed the
propriety of summarily adopting it). Ramos’s motion to
suppress his confession based on voluntariness rested
dispositively on his claim that, during his second visit to
Ramos’s cell, Marrufo had confronted Ramos with a baggie
of drugs that Marrufo (falsely) claimed were found in
Ramos’s car and that, if Ramos did not cooperate, Ramos
2
I reject the majority’s suggestion that the relevant inquiry is whether
there are grounds “to second-guess” the veracity of the district court’s
“assertion” that it has conducted a de novo review. See Opin. at 19–20.
I have no reason to doubt that the district judge endeavored to address
the merits of Ramos’s motion conscientiously and that, subjectively, the
judge believed that he had conducted a sufficient de novo review. But
our subjective beliefs are not always objectively accurate and, when
measured up against objective standards, the judge’s order here falls
short.
UNITED STATES V. RAMOS 31
would be sent to prison for years on a drug trafficking
charge. Marrufo flatly denied that he had said any such
thing. Ramos’s claim on this score simply cannot adequately
be assessed without a sufficient factual finding as to what
Marrufo did or did not say during that second cell visit. On
this point, there were aspects to both men’s testimony that
were problematic. As the magistrate judge noted, Ramos’s
credibility was generally impaired by the implausibility of
some of his other testimony and statements, and that general
lack of credibility could suffice to reject his testimony on this
score as well. On the other hand, as the magistrate judge
noted, the Government had failed to explain the baggie.
Marrufo could not explain it either, because he stated at the
suppression hearing that he did not recall whether he had a
baggie. In nonetheless finding that Marrufo did not threaten
Ramos with a baggie of drugs, the magistrate judge
speculated that the “most likely” reason why Marrufo had
the baggie was that it contained the medicine that Ramos had
requested. But that speculation is clearly erroneous, because
(1) the recording shows that Marrufo did not give the baggie
or its contents to Ramos during the cell visit; and (2) the
hearing testimony established that a different agent was the
one who gave Ramos his medication.
On appeal, the Government points to the different
explanation that Marrufo gave at trial, when he stated that
the baggie was probably an evidence bag that he happened
to be carrying with him on his way to the evidence locker.
See Rocha v. United States, 387 F.2d 1019, 1021 (9th Cir.
1967) (“In determining whether a district court erred in
admitting evidence claimed to have been seized as the result
of an unreasonable search, an appellate court will not
ordinarily limit itself to the testimony received at a pretrial
motion to suppress, but will also consider pertinent
32 UNITED STATES V. RAMOS
testimony given at the trial.”). But this explanation is hard
to square with the video recording, in which Marrufo
prominently extends his arm and holds out the bag towards
Ramos for nearly half of the visit. Even though there is no
audio, the inference appears inescapable that Marrufo is
discussing the baggie with Ramos. Indeed, it is notable that
both of the explanations raised at the suppression hearing
(i.e., the Government’s suggestion in cross-examination that
Marrufo was bringing Ramos food and the magistrate
judge’s suggestion that Marrufo was bringing him medicine)
rest on the view that Marrufo was discussing the baggie with
Ramos.
As I noted earlier, Ramos’s objections to the magistrate
judge’s report prominently highlighted this key issue about
why Marrufo was showing Ramos a baggie that appears to
contain a powdery substance, and it specifically (and
correctly) pointed out that the magistrate judge’s medicine
explanation was rank speculation that was unsupported by
the record. Given this backdrop, it is very difficult to see
how the requisite de novo review of this objection, and of
the magistrate judge’s report, could have led to a wholesale
adoption of that report without any modification whatsoever.
Even if the district judge thought that the magistrate judge
reached the right ultimate conclusion for the wrong reasons,
the district court would still be obligated either to correct the
report before adopting it or to adopt it only in part. See 28
U.S.C. § 636(b)(1) (requiring a de novo “determination” of
any “specified proposed findings . . . to which objection is
made”).
The majority dismisses this erroneous statement by the
magistrate judge on the grounds that it was immaterial to the
overall correctness of the report. See Opin. at 22–23.
According to the majority, the error does not matter because
UNITED STATES V. RAMOS 33
the magistrate judge “was not required to propose a factual
finding about the contents of the bag,” but only had to decide
“whether Ramos’s confession was voluntary.” Opin. at 22–
23; see also Opin. at 20. This comment fundamentally
misconceives the role of a district judge in reviewing a
magistrate judge’s report and recommendation under
§ 636(b)(1)(B). That role is not akin to this court’s review
of district court judgments, which may be affirmed, despite
clear errors, so long as those mistakes are harmless. See
generally Neder v. United States, 527 U.S. 1, 8–9 (1999)
(discussing scope of harmless-error review of constitutional
errors); United States v. Berry, 627 F.2d 193, 201 (9th Cir.
1980) (stating that, if there was a “non-constitutional error,”
we may “affirm if the error is more probably harmless than
not”). Because, for the narrow class of motions governed by
§ 636(b)(1)(B), the magistrate judge may only submit
“proposed findings of fact and recommendations for the
disposition” of the motion, see 28 U.S.C. § 636(b)(1)(B)
(emphasis added), any such report—including the errors
within it—becomes the ruling of the district court itself to
the extent that it is adopted. In that sense, a magistrate
judge’s report under § 636(b)(1)(B) is more akin to a draft
opinion than to a judgment. Accordingly, where, as here, the
magistrate judge’s report contains a clear error, and the error
has been correctly called to the district court’s attention by a
timely objection, the district court abuses its discretion in
proceeding nonetheless to formally adopt the error as its
own. And the fact that the district court did so here is a
strong indication that it did not perform the “proper de novo
review” required by § 636(b)(1). See Opin. at 15 (emphasis
added).
Second, there are good reasons to suspect that the district
judge’s order adopting the magistrate judge’s report here is,
34 UNITED STATES V. RAMOS
for all practical purposes, a 4½-page rubberstamp. Nearly
all of the verbiage in the order is non-specific to this case
and consists largely of citations addressing the legal
framework for reviewing magistrate judges’ reports. Indeed,
nearly two full pages consist of a string citation of cases
upholding, as sufficient to satisfy de novo review, district
judges’ unexplained orders summarily rejecting objections
and adopting such reports. The only aspects that relate
specifically to this case are the names of the magistrate judge
who filed the report and of the party who objected and the
docket numbers of the parties’ filings. Moreover, a Westlaw
search reveals that, on at least 30 other occasions since
March 2021, this same district judge has entered largely
verbatim identical boilerplate orders—complete with the
exact same pages of string cites—rejecting objections to, and
adopting, magistrate judges’ reports. 3 Indeed, a Westlaw
3
See United States v. Rakestraw, 2023 WL 2624461 (D. Ariz. Mar. 24,
2023); Knight v. Commissioner of Soc. Sec. Admin., 2023 WL 119397(D. Ariz. Jan. 6, 2023); Elem v. Shinn, 2022 WL 17668701 (D. Ariz.
Dec. 14, 2022); Loreto v. Arizona Bd. of Regents, 2022 WL 17369424(D. Ariz. Dec. 2, 2022); Dorame v. Kijakazi, 2022 WL 16707018 (D.
Ariz. Nov. 4, 2022); United States v. Alissa, 2022 WL 4545758 (D. Ariz.
Sept. 29, 2022); Barone v. Kijakazi, 2022 WL 4396262 (D. Ariz. Sept.
23, 2022); Cisneros v. Ryan, 2022 WL 3577270 (D. Ariz. Aug. 19,
2022); Williams v. Arizona Super. Ct. of Pima Cnty., 2022 WL 2314757(D. Ariz. June 28, 2022); Morrow v. Temple, 2022 WL 2286803 (D.
Ariz. June 24, 2022); United States v. Williams, 2022 WL 2187745 (D.
Ariz. June 17, 2022); United States v. Monreal-Rodriguez, 2022 WL
1957634 (D. Ariz. June 6, 2022); United States v. Rakestraw, 2022 WL
1237035 (D. Ariz. April 27, 2022); United States v. Moore, 2022 WL
112497 (D. Ariz. April 15, 2022); United States v. Monteen, 2022 WL
1044919 (D. Ariz. April 7, 2022); Mendoza v. Commissioner of Soc. Sec.
Admin., 2022 WL 897098 (D. Ariz. Mar. 28, 2022); Felix v. Shinn, 2022
WL 326360 (D. Ariz. Feb. 3, 2022); United States v. Monreal-
UNITED STATES V. RAMOS 35
search revealed only three instances in that time period in
which this district judge departed from this boilerplate order
in ruling on objections to a magistrate judge’s report. See
United States v. Garcia, 2023 WL 1989644 (D. Ariz. Feb.
14, 2023) (rejecting, after the Government objected, a
magistrate judge’s report recommending granting a motion
to suppress); United States v. Moore, ___ F. Supp. 3d ___,
2022 WL 5434268 (D. Ariz. Oct. 7, 2022) (same); Frodsam
ex rel. Fleming & Curti PLC v. Arizona, 2022 WL 3082911(D. Ariz. June 23, 2022) (summarily rejecting objections and
adopting magistrate judge’s report recommending transfer
of case to Phoenix division of the district court). I am
unaware of any circuit precedent that has ever upheld this
sort of near-uniform use of unexplained orders that
summarily adopt magistrate judges’ reports wholesale. Cf.
Jones, 22 F.4th at 679 (noting that “in some cases, a district
court may even adopt the magistrate judge’s proposed
findings and recommendation in its entirety without writing
its own opinion” (emphasis added)).
Third, we have previously admonished this same district
judge for using boilerplate orders in ruling on objections to
Rodriguez, 2022 WL 130969 (D. Ariz. Jan. 14, 2022); Chiaminto v.
Commissioner of Soc. Sec. Admin., 2022 WL 71985 (D. Ariz. Jan. 7,
2022); Pesqueira v. Arizona, 2021 WL 6125732 (D. Ariz. Dec. 28,
2021); United States v. Lee, 2021 WL 5782872 (D. Ariz. Dec. 7, 2021);
Randall v. Arizona, 2021 WL 5771155 (D. Ariz. Dec. 6, 2021); Norman
v. Rancho del Lago Cmty. Ass’n, 2021 WL 4272692 (D. Ariz. Sep. 21,
2021); Bailey v. Ethicon Inc., 2021 WL 4190625 (D. Ariz. Sep. 15,
2021); Celaya v. Shinn, 2021 WL 3773766 (D. Ariz. Aug. 25, 2021);
United States v. Rakestraw, 2021 WL 3046905 (D. Ariz. July 20, 2021);
Threats v. Shartle, 2021 WL 2646873 (D. Ariz. June 28, 2021); Russell
v. University of Arizona, 2021 WL 1138031 (D. Ariz. Mar. 25, 2021);
Hollingshead v. Shinn, 2021 WL 871640 (D. Ariz. Mar. 9, 2021);
Channel v. Shinn, 2021 WL 871530 (D. Ariz. Mar. 9, 2021).
36 UNITED STATES V. RAMOS
magistrate judges’ reports, but to no avail. In United States
v. Jones, 837 F. App’x 423 (9th Cir. 2021), the district judge
adopted the magistrate judge’s report recommending denial
of a motion to suppress in a one-page summary order that
was devoid of any reasoning beyond an assertion that the
“objected-to portions” of the report had been reviewed de
novo. See United States v. Jones, 2018 WL 6329455, at *1
n.1 (D. Ariz. Dec. 4, 2018). In our February 24, 2021
memorandum affirming that decision, we nonetheless noted:
[T]he district court should not have
summarily adopted the magistrate judge’s
report and recommendation without
addressing all of Defendant’s objections,
namely that the magistrate judge failed to
address his constitutional challenges to [the
detaining federal agent’s] cross-certification
[under Arizona law]. See Brown v. Roe, 279
F.3d 742, 745 (9th Cir. 2002). When a party
objects to the proposed findings and
recommendations, the district court judge
must “make a de novo determination of those
portions of the report or specified proposed
findings and recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1).
However, in the case before us, addressing
the objections would not have resulted in a
different outcome.
Jones, 837 F. App’x at 424 (emphasis added). Less than two
weeks later, on March 9, 2021, the district judge first issued
what is now his 4½-page standard order overruling
objections to, and adopting, magistrate judges’ reports. See
supra note 3. Thus, the district judge’s apparent response to
UNITED STATES V. RAMOS 37
our admonition in Jones about summarily adopting reports
was to craft a new standard order explicitly defending and
continuing a consistent practice of such summary adoptions.
As Ramos noted below, the boilerplate nature of the
district judge’s order in this case is starkly illustrated by the
fact that the order begins with a wholly inapposite paragraph
discussing the court’s decision to “exercise[] its discretion to
not consider” any “new evidence, arguments, and issues that
were not timely and properly raised” before the magistrate
judge and to instead deem those points to be “waived.” This
paragraph makes no sense, because there were no such
“waived” matters in Ramos’s objections, and the
Government’s response to those objections did not argue that
any of them had been waived. By holding that even this
peculiar inclusion of inapplicable boilerplate makes no
difference here, see Opin. at 20 n.5, the majority underscores
its wholesale abdication of any meaningful review in this
area. Under today’s opinion, every district judge in the
circuit will now be incentivized to develop a similar, one-
size-fits-all rubberstamp order.
Fourth, it is important to keep in mind that the underlying
issue here is one of constitutional dimension. In holding that
“the Constitution [is] not violated by the reference to a
Magistrate [Judge] of a motion to suppress evidence in a
felony trial,” the Supreme Court has emphasized that the
statutory requirement of de novo review ensures that “the
handling of suppression motions invariably remains
completely in the control of the federal district court.”
Peretz v. United States, 501 U.S. 923, 937–38 (1991)
(quoting United States v. Raddatz, 447 U.S. 667, 685 (1980)
(Blackmun, J., concurring)). Where, as here, there are
reasons to believe that the requisite review and control by
the district judge may not have occurred, principles of
38 UNITED STATES V. RAMOS
avoidance of constitutional concerns provide a further
ground for a remand and re-examination.
Finally, I do not think that we can say that the district
court’s error was harmless. As I have explained, the problem
here is that the magistrate’s report contains a clearly
erroneous finding about why Marrufo had the baggie, and
this court, as an appellate tribunal, lacks any authority to say
what factual finding should replace that defective
determination. The evidence on the point was hotly
disputed, there are difficulties with both side’s explanations,
and the record would support more than one resolution. Nor,
on this record, do I think that we can say that, regardless of
the competing explanations for the baggie, Ramos is
somehow not credible on this point as a matter of law. The
only person who ultimately can make this determination is
not us, nor is it the magistrate judge—only the district judge
can resolve this point by making appropriate factual
determinations that are untainted by the magistrate judge’s
clear error.
Accordingly, I think that there are sufficient grounds to
warrant remand here with instructions to issue a new order
that reflects the requisite de novo review and that does not
summarily adopt a magistrate judge’s report that contains a
clearly erroneous factual finding on a critical issue.
* * *
For the foregoing reasons, I would remand this matter to
the district court with instructions that the district judge
reconsider the suppression motion de novo and, if that
motion is found to have merit, to then order a new trial. To
the extent that the majority concludes otherwise, I
respectfully dissent.