Court filing
Report and Recommendation on Restoration Procedures — United States v. Evan Edwards (a/k/a Ian Heringa) and Joshua Edwards (M.D. Fla. No. 6:22-cr-00201)
Filed October 3, 2023 in U.S. v. Evan Edwards; one of 3 filings from this case.
No. 6:22-cr-00201-AGM-LHP · Doc. 117 · 2023-10-03 · Docket on CourtListener
Full text
Case 6:22-cr-00201-AGM-LHP Document 117 Filed 10/03/23 Page 1 of 17 PageID 548
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
UNITED STATES OF AMERICA
VS. CASE NO: 6:22-cr-201-WWB-LHP
EVAN EDWARDS
REPORT AND RECOMMENDATION1
TO THE UNITED STATES DISTRICT COURT:
This case comes before the Court following extensive competency
proceedings under 18 U.S.C. §§ 4241 and 4247. As discussed in more detail below,
the parties agree that Defendant Evan Edwards is not presently competent to stand
trial under the standards set forth in 18 U.S.C. § 4241(d) and Dusky v. United States,
362 U.S. 402 (1960). However, the parties contest whether the Court must now
commit Evan Edwards to the custody of the Attorney General for restoration
treatment and evaluation, as required by 18 U.S.C. § 4241(d)(1), or whether the
Court can skip this step and instead proceed to evaluation under either 18 U.S.C. §§
4246 or 4248. See Doc. Nos. 108, 116.
1
Although the undersigned has the authority to enter an order when the parties do
not contest the issue of competency, because the parties do contest the course of further
proceedings in this case, the undersigned has addressed this issue via the present report
and recommendation. See In re: Authority of United States Magistrate Judges in the Middle
District of Florida, No. 8:20-mc-100-T-23, Doc. No. 3 § (d)(27) (M.D. Fla. Oct. 29, 2020).
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For the reasons set forth in this report, I find the procedures of 18 U.S.C. §
4241(d)(1) to be mandatory, and will therefore respectfully recommend that the
Court commit Evan Edwards to the custody of the Attorney General, who shall
hospitalize Evan Edwards for treatment in a suitable facility for a reasonable time,
not to exceed four months, as is necessary to determine whether there is a
substantial probability that in the foreseeable future he will attain the capacity to
permit the proceedings to go forward.
I. RELEVANT PROCEDURAL HISTORY
On December 7, 2022, a grand jury returned an indictment charging Evan
Edwards with one count of conspiracy to commit bank fraud, one count of bank
fraud, and two counts of visa fraud, in violation of 18 U.S.C. § 1349, 18 U.S.C. § 1344,
and 18 U.S.C. § 1546(a), respectively. Doc. No. 1. Evan Edwards was arrested on
December 14, 2022, and an initial appearance proceeding pursuant to Fed. R. Crim.
P. 5 was conducted before United States Magistrate Judge David A. Baker that same
day. Doc. Nos. 9, 10.
During the course of the Rule 5 proceedings, Magistrate Judge Baker
determined that there was a question as to Evan Edward’s mental competency to
proceed. Doc. Nos. 9, 14. Accordingly, Magistrate Judge Baker continued the
Rule 5 proceedings, provisionally appointed counsel pursuant to the Criminal
Justice Act, and ordered Evan Edwards temporarily detained and committed to the
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custody of the United States Marshal for provision of medical care. Doc. Nos. 9,
17, 21, 25-26. 2
Magistrate Judge Baker held a status conference with counsel on December
21, 2022, and on December 27, 2022 Magistrate Judge Embry J. Kidd held a
continuation of the Rule 5 hearing via the online Zoom platform, and attempted to
conduct an arraignment. Doc. Nos. 27, 33. Magistrate Judge Kidd was able to
complete a portion of the Rule 5 proceedings – he advised Evan Edwards of his
rights, and summarized the charges and the potential penalties – but was unable to
go forward with any further proceedings or the arraignment. Doc. No. 33.
Magistrate Judge Kidd thereafter held status hearings with counsel on December
28, 2022, and January 4, 2023, and on January 6, 2023, appointed Dr. Ryan C. W.
Hall, M.D., DFAPA, to examine Evan Edwards pursuant to 18 U.S.C. §§ 4241 and
4247(b). Doc. Nos. 42, 45, 48, 50.
On January 16, 2023, Dr. Hall submitted his expert report, in which he opined
that Evan Edwards was currently incompetent to proceed, but that the question of
whether Evan Edwards’ competency could be restored was unclear. Doc. No. 58
(filed under seal). Counsel for Evan Edwards objected to Dr. Hall’s findings, and
2
Magistrate Judge Baker initially provisionally appointed the Federal Public
Defender to represent Evan Edwards, but based on a conflict of interest, authorized the
Federal Public Defender’s withdrawal, and provisionally appointed Attorney A. Brian
Phillips under the Criminal Justice Act on December 20, 2022. Doc. Nos. 17, 24-26.
Attorney Phillips continues to represent Evan Edwards to date.
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filed a motion for detention hearing. Doc. No. 56. The United States noted its
agreement with Dr. Hall’s findings, and requested that a hearing be set to address
competency, with a commitment order under 18 U.S.C. § 4241(d) to follow. Doc.
No. 57.
By this point, the case had been reassigned to the undersigned. On February
24, 2023, following several status conferences with counsel and briefing from both
sides (Doc. Nos. 65, 78-79; Doc. No. 66 under seal), I denied without prejudice Evan
Edwards’ motion for a detention hearing, and motion to prohibit his transfer by the
United States Marshals Service. Doc. No. 85; see also Doc. Nos. 56, 77. 3
By that same Order, I also found that there was reasonable cause to believe
that Evan Edwards was presently suffering from a mental disease or defect
rendering him mentally incompetent to the extent that he was unable to understand
the nature and consequences of the proceedings against him or to assist properly in
his defense. Doc. No. 85, at 5-6; see also 18 U.S.C. § 4241(a). Accordingly, I
committed Evan Edwards to the custody of the Attorney General for placement at
3
Up until this point in the case, Evan Edwards had remained in the custody of the
United States Marshals Service and was receiving around-the-clock medical care at
Orlando Regional Medical Center (“ORMC”). The United States Marshals Service
ultimately designated Evan Edwards to the Columbia Regional Care Center (the “Care
Center”) in Columbia, South Carolina, which provides a program for inmates and
detainees with complex medical issues. Evan Edwards, through counsel, filed a motion
to prohibit this transfer to the Care Center, which motion the undersigned denied. Doc.
No. 85.
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the Federal Medical Center in Butner, North Carolina (“FMC Butner”) for a term
not to exceed 30 days to conduct a psychiatric or psychological examination, and to
prepare and submit to the Court and all parties a psychiatric or psychological report
assessing “whether [Evan Edwards] is suffering from a mental disease or defect
rendering him mentally incompetent to the extent that he is unable to understand
the nature and consequences of the proceedings against him or to assist properly in
his defense.” Doc. No. 85, at 5-6 (quoting 18 U.S.C. §§ 4247(b), (c)). See also 18
U.S.C. § 4241(b). 4
On July 7, 2023, Dr. Miriam Kissin, Psy. D., a forensic psychologist employed
by the Bureau of Prisons, submitted a forensic report regarding Evan Edwards’
present competency to stand trial. Doc. No. 98 (under seal). 5 Dr. Kissin opined,
following completion of the 30-day evaluation period set forth in 18 U.S.C. §
4247(b), that Evan Edwards’ “present competency-related skills are significantly
compromised by symptoms of a serious mental illness or defect, namely Major
Neurocognitive Disorder (Dementia) without behavioral disturbance, severe, such
that he is unable to understand the nature and consequences of the proceedings
4
The Bureau of Prisons changed Evan Edwards’ designation to FMC Devens in
Ayer, Massachusetts, as that facility operated a unit specifically for individuals with
dementia-related illnesses and could provide the medical care he required.
5
Although Dr. Kissin’s report remains under seal, it is necessary to discuss some of
her conclusions in this report and recommendation, although the undersigned has
endeavored to keep such discussion to the minimum necessary to render this report.
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against him or to assist properly in his defense.” Id., at 8. Under a section entitled
“Prognosis and Recommendations,” Dr. Kissin further opined that:
Mr. Edwards’s Major Neurocognitive Disorder (Dementia) has a
significant negative impact on his ability to function or make rational
decisions or to effectively aid his defense counsel. As evidenced by
his presentation over the last several months, Mr. Edwards has
demonstrated no ability to engage meaningfully with others.
Typically, there is a one-year window for rehabilitation to ensure some
functional gains post brain injury. As this time frame has already
passed, limited if any, improvement in Mr. Edwards's cognitive
functioning would be expected. Furthermore, his attending medical
provider has opined that Mr. Edwards has suffered irreversible
neurological damage. As such, a period of restoration to competency
pursuant to Title 18, United States Code, Section 424l(d) is not
indicated for Mr. Edwards as he is not expected to benefit from
educational interventions in light of his neurological disorder. He
would be best served within a structured setting where he has access
to regular support to meet his basic needs.
Id.
Upon review of Dr. Kissin’s report, Evan Edwards, through counsel, filed a
renewed motion for a detention hearing. Doc. No. 99. The parties subsequently
filed a joint notice (Doc. No. 101; see also Doc. No. 100), stating that neither side
currently contests the finding of incompetence made within Dr. Kissin’s report.
Doc. No. 101, at 1. However, the parties further represented that the question of
what further proceedings were necessary and appropriate remained in dispute.
Id., at 1-2. The United States also filed a separate response, in which it agreed that
conditions of pretrial release could now be set. Doc. No. 102.
On August 3, 2023, the undersigned conducted a status conference with
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counsel, at the conclusion of which the undersigned scheduled a detention hearing
for August 31, 2023, and established a briefing schedule for the parties to argue their
positions as to whether the restoration procedures of 18 U.S.C. § 4241(d) apply, and,
if not, what further proceedings should occur in this case. Doc. Nos. 104-06. The
detention hearing was rescheduled for September 12, 2023, and Magistrate Judge
Kidd conducted the hearing due to the undersigned’s unforeseen absence. Doc.
Nos. 107, 112. At the conclusion of the hearing, Magistrate Judge Kidd released
Evan Edwards on various pretrial conditions, including that he be placed in the
custody of his wife, Mary Jane Edwards, who agreed to act as third-party custodian.
Doc. No. 114. Evan Edwards remains out on these conditions of release as of the
date of this report.
In the meantime, the parties have now submitted their briefing on the
question of further proceedings, and Evan Edwards has submitted, under seal,
copies of some of his medical records, which the undersigned has reviewed. Doc.
Nos. 108, 116; see also Doc. No. 111, under seal. The issue is therefore ripe for
consideration and this report and recommendation follows.
II. ANALYSIS
18 U.S.C. § 4241(d) provides as follows:
(d) Determination and disposition.--If, after the hearing, the
court finds by a preponderance of the evidence that the defendant is
presently suffering from a mental disease or defect rendering him
mentally incompetent to the extent that he is unable to understand the
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nature and consequences of the proceedings against him or to assist
properly in his defense, the court shall commit the defendant to the
custody of the Attorney General. The Attorney General shall
hospitalize the defendant for treatment in a suitable facility—
(1) for such a reasonable period of time, not to exceed four
months, as is necessary to determine whether there is a substantial
probability that in the foreseeable future he will attain the capacity to
permit the proceedings to go forward; and
(2) for an additional reasonable period of time until—
(A) his mental condition is so improved that trial may proceed,
if the court finds that there is a substantial probability that within such
additional period of time he will attain the capacity to permit the
proceedings to go forward; or
(B) the pending charges against him are disposed of according
to law;
whichever is earlier.
If, at the end of the time period specified, it is determined that
the defendant’s mental condition has not so improved as to permit the
proceedings to go forward, the defendant is subject to the provisions
of sections 4246 and 4248.
18 U.S.C. § 4241(d) (emphasis supplied).
The Eleventh Circuit Court of Appeals has made clear that once a defendant
is found incompetent to stand trial, the language of § 4241(d) mandates that the
defendant be hospitalized under the custody of the Attorney General for a careful
determination of the likelihood of regaining mental capacity to stand trial. United
States v. Donofrio, 896 F.2d 1301, 1303 (11th Cir. 1990). The Eleventh Circuit further
held that this hospitalization did not violate due process because the period of
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commitment is limited by § 4241(d) itself to a “reasonable period,” not to exceed
four (4) months, and the period may only be extended by a separate finding that the
defendant would attain competency within the additional time. Id. The Court of
Appeals further held that the provisions of § 4241(d) are mandatory even if it
appears that a defendant’s mental condition/competency status is permanent; as
“[t]he permanency of the condition would then be determined for later
consideration by the court” following the hospitalization period set forth in §
4241(d). Id.
Donofrio remains the binding precedent for this Circuit, and every other
Circuit to address this issue has reached the same conclusion. See, e.g., United States
v. Shawar, 865 F.2d 856, 860 (7th Cir. 1989) (“The statute plainly states that ‘the court
shall commit the defendant to the custody of the Attorney General [who] shall
hospitalize the defendant for treatment . . . .’ The plain meaning of this phrase is,
and we hold it to be, that once a defendant is found incompetent to stand trial, a
district judge has no discretion in whether or not to commit him.” (quoting 18 U.S.C.
§ 4241(d)) (emphasis in original)); United States v. Filippi, 211 F.3d 649, 651 (1st Cir.
2000) (noting that § 4241(d) “certainly establishes a general rule of some breadth
and does not appear to call for any case-by-case choice by the district court as to
whether to incarcerate once the incompetency finding has been made.”); United
States v. Ferro, 321 F.3d 756, 761 (8th Cir. 2003) (noting that although “[i]t is clear
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that the statutory scheme detailed by Congress in § 4241(d) provides the district
court with the discretion to initially determine whether the defendant is competent
to stand trial . . . . [A]fter determining that a defendant is incompetent . . . a district
court is required to commit the defendant to the custody of the Attorney General
for a reasonable period of time to evaluate whether treatment would allow the trial
to proceed.”); United States v. Magassouba, 544 F.3d 387, 404 (2d Cir. 2008) (“[I]n
contrast to the discretion afforded district courts in deciding whether to commit a
defendant for a preliminary competency examination, once a defendant is found
incompetent, commitment pursuant to 4241(d) is mandatory.” (citations omitted));
United States v. McKown, 930 F.3d 721, 727 (5th Cir. 2019) (“[U]nlike the court’s
discretion to confine a defendant before an initial competency hearing, commitment
is mandatory upon a finding of incapacity. That is so irrespective of the
defendant’s initial prognosis.” (footnotes omitted) (citing 18 U.S.C. § 4241(d));
United States v. Donnelly, 41 F.4th 1102, 1105 (9th Cir. 2022) (“The [Insanity Defense
Reform Act] thus imposes two mandatory duties following an incompetency
finding. First, the district court ‘shall commit the defendant to the custody of the
Attorney General.’ Second, ‘[t]he Attorney General shall hospitalize the defendant
for treatment in a suitable facility . . . for such a reasonable period of time, not to
exceed four months.’” (quoting 18 U.S.C. § 4241(d)(1)). See also United States v. Lee,
No. 1:21-CR-20034, 2022 WL 18275882, at *3 (S.D. Fla. Dec. 27, 2022), report and
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recommendation adopted, 2023 WL 168755 (S.D. Fla. Jan. 12, 2023) (“Upon a finding of
incompetence to continue in proceedings against a criminal defendant, a court must
commit the defendant to the custody of the Attorney General for a period not to
exceed four months to evaluate whether the defendant may be restored to
competency. Such commitment is mandatory.” (citing 18 U.S.C. § 4241(d)(1);
Donofrio, 896 F.2d at 1303); United States v. Calhoun, No. 2:22-CR-167-ECM, 2023 WL
2316186, at *1 (M.D. Ala. Mar. 1, 2023), appeal dismissed, No. 23-10773, 2023 WL
3863505 (11th Cir. June 7, 2023) (“Upon the finding of incompetency, commitment
to the custody of the Attorney General for a period of restoration is mandatory.”
(citing 18 U.S.C. § 4241(d)(1); Donofrio, 896 F.2d at 1303).
In his briefing on the issue, Evan Edwards recognizes this body of authority,
and does not cite to any decisions suggesting § 4241(d) is not mandatory. Rather,
Evan Edwards argues that the caselaw is factually distinguishable because here, the
question of Evan Edwards’ restoration to mental competency is a foregone
conclusion, and therefore any further treatment would only serve to punish him
and violate his due process rights. Doc. No. 108. Evan Edwards focuses on his
extensive medical history, which demonstrates several life-threatening medical
issues since July 2022, and suggests that Evan Edwards has suffered irreversible
brain damage and is unable to independently perform basic activities of daily
living. Id., at 5-7; see also Doc. No. 111, under seal. Evan Edwards particularly
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focuses on the statements by Dr. Kissin in her BOP report that “limited if any,
improvement in Mr. Edwards’s cognitive functioning would be expected,” that
Evan Edwards “has suffered irreversible neurological damage,” and therefore
hospitalization for restoration proceedings under § 4241(d) “is not indicated.”
Doc. No. 98, at 8. In short, Evan Edwards contends that “the BOP has already
resolved this issue” of restoration, therefore any further restoration is “[a] factually
unnecessary endeavor,” and would render “meaningless the clear and
unambiguous findings of the government’s report.” Doc. No. 108, at 9.
While there can be no dispute that Evan Edwards suffers from a myriad of
serious physical and mental ailments, the undersigned disagrees that complying
with the clear mandates of § 4241(d) would be a “factually unnecessary endeavor.”
While Dr. Kissin’s opinions do suggest that restoration will ultimately be
unsuccessful, she rendered that opinion after only conducting the preliminary 30-
day evaluation contemplated by 18 U.S.C. § 4241(b), and § 4247(b), and she
prepared her report in accordance with 18 U.S.C. § 4247(c), which does not request
a finding as to probability of restoration. See Doc. No. 98, at 1, under seal. In other
words, Dr. Kissin’s evaluation was focused primarily on whether Evan Edwards is
currently competent to proceed. See United States v. Brennan, 928 F.3d 210, 217 n.2
(2d Cir. 2019) (noting that the initial psychiatric evaluation is limited by § 4241(b)
and § 4247(b) to a period not to exceed 30 days, thus “constraining a medical
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professional’s ability to evaluate and treat a mentally incompetent defendant.”).
In contrast, the period of commitment to assess restoration necessarily
involves a much more detailed evaluation and assessment, focusing on the future.
It “requires a more ‘careful and accurate diagnosis’ than the ‘brief interviews’ and
‘review of medical records’ that tend to characterize the initial competency
proceeding.” United States v. Strong, 489 F.3d 1055, 1062 (9th Cir. 2007) (citing
Ferro, 321 F.3d at 762; Filippi, 211 F.3d at 651). See also McKown, 930 F.3d at 728 (“On
account of ‘the limitations on the federal courts in the field of mental health,’ the
statute reasonably permits a more thorough evaluation before the district court
must decide ‘whether to defer trial indefinitely and (quite often) to release the
defendant back into society.’”) (first quoting Shawar, 865 F.2d at 860-61, then
quoting Filippi, 211 F.3d at 651). Thus, with all due respect to Dr. Kissin’s opinions,
whether or not Evan Edwards is capable of restoration to competency is not a
foregone conclusion.
In addition, decisional authority from within this Circuit and others shows
that even where the likelihood of restoration is bleak, § 4241(d) is mandatory and
cannot be ignored. See Donofrio, 896 F.2d at 1302-03 (finding that following the
mandates of § 4241(d) did not violate due process even though evidence was
presented at the initial § 4241(a) proceedings that defendant would never attain the
capacity to permit a trial to proceed); United States v. Millard-Grasshorn, 603 F.3d 492,
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494 (8th Cir. 2010) (“When a finding of mental incompetence is made after the
competency hearing mandated by § 4241(a), the defendant must be committed
under § 4241(d) for a restoration-of-competency evaluation, even if there is evidence
that his condition can never improve.” (emphasis in original)); McKown, 930 F.3d at
728 (finding order committing defendant for four month restoration evaluation
accords with due process because “even where the medical evidence indicates that
the defendant’s condition is permanent, temporary hospitalization bears some
reasonable relation to the purpose for that confinement.”); Brennan, 928 F.3d at 215-
16 (because the district court found the defendant presently incompetent,
commitment under § 4241(d) was mandatory and constitutional, even though
expert who conducted initial competency evaluation opined that defendant’s
mental capacity was highly unlikely to improve); Shawar, 865 F.2d at 861 (“Our
reading of 18 U.S.C. § 4241(d) is not only that commitment is mandatory, but also
that likelihood of recovery is not something to be considered by the district court in
deciding whether to commit the defendant for the evaluation period”; thus, even
though experts had already opined that defendant’s mental defect would not
change, commitment for restoration assessment was still required). See also United
States v. Cottingham, Case No. 5:19-cr-00010-LCB-JHE-1, Doc. No. 35 (N.D. Ala. Nov.
5, 2019) (even though Bureau of Prisons’ expert opined in forensic report that
“considering the typical nature of neurocognitive disorders, it is questionable as to
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whether the defendant would experience any significant improvement in his
mental state,” district court committed defendant to custody of Attorney General
for restoration hospitalization under mandatory provisions of § 4241(d); noting that
“the process of determining whether a defendant is competent or not is markedly
different from determining whether an incompetent defendant may be restored to
competency.”); United States v. Hooks, No. CR 21-054, 2022 WL 1207824, at *5 (E.D.
La. Mar. 31, 2022), report and recommendation adopted, No. CV 21-MJ-54, 2022 WL
1202895 (E.D. La. Apr. 22, 2022) (while recognizing a state court finding that the
defendant was “irrestorably incompetent,” district court had no discretion and
must commit defendant to the custody of the Attorney General for further
evaluation under § 4241(d)). Evan Edwards points to no legal authority suggesting
a contrary conclusion.
In sum, the binding and persuasive precedent on this issue has uniformly
held that § 4241(d) is mandatory. Once a district court finds a defendant be
presently incompetent, the court has no discretion – the defendant must be
committed to the custody of the Attorney General for a reasonable period not to
exceed four months in order to assess whether mental competency can be restored.
Whether or not the evidence in this case (including Dr. Kissin’s statements during
the initial evaluation process) suggests that the answer to this question for Evan
Edwards will ultimately be no, does not change this result.
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III. RECOMMENDATION
Because the parties do not dispute that Evan Edwards is currently
incompetent to proceed, and for the reasons set forth in this report, I
RESPECTFULLY RECOMMEND that the Court find that Defendant Evan
Edwards is presently suffering from a mental disease or defect rendering him
mentally incompetent to the extent that he is unable to understand the nature and
consequences of the proceedings against him or to assist properly in this defense.
See 18 U.S.C. § 4241(d). I FURTHER RECOMMEND that the Court commit Evan
Edwards to the custody of the Attorney General for hospitalization and treatment
in a suitable facility for such a reasonable period of time, not to exceed four (4)
months, as is necessary to determine whether there is a substantial probability that
in the foreseeable future he will attain the capacity to permit the proceedings to go
forward. I FURTHER RECOMMEND that the Court permit Evan Edwards to
self-surrender to the facility so designated by the Attorney General for such
hospitalization and treatment.
NOTICE TO PARTIES
A party has fourteen days from the date the Report and Recommendation is
served to serve and file written objections to the Report and Recommendation’s
factual findings and legal conclusions. Failure to serve written objections waives
that party’s right to challenge on appeal any unobjected-to factual finding or legal
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conclusion the district judge adopts from the Report and Recommendation. 11th
Cir. R. 3-1.
Recommended in Orlando, Florida on October 3, 2023.
Copies furnished to:
Presiding District Judge
Counsel of Record
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