U.S. v. Funderburk
| Decision Date | 22 February 2007 |
| Docket Number | No. 04-CR-189A.,04-CR-189A. |
| Citation | 492 F.Supp.2d 223 |
| Parties | UNITED STATES of America, v. Ronnie FUNDERBURK, Defendant. |
| Court | U.S. District Court — Western District of New York |
Kathleen M. Mehltretter, Acting United States Attorney, Mary C. Kane, of Counsel, Buffalo, NY, for the Government.
Leigh E. Anderson, Esq. Law Office of David J. Seeger, David J. Seeger, of Counsel, Buffalo, NY, for Defendant Richard Mullen.
Joseph J. Terranova, Esq., Hamburg, NY, for Defendant Frederick Nolley.
Loren D. Lobban, The Bullard Lobban Law Group, Buffalo, NY, for Defendant Efrim K. Richardson.
Sean Dennis Hill, Esq., Buffalo, NY, for Defendant Michael Stranc.
Cohen & Lombardo, P.C., Robert N. Convissar, of Counsel, Buffalo, NY, for Defendant Andre Hall.
Terry Granger, Esq., Buffalo, NY, for Defendant Durrian Pressley.
Matthew P. Pynn, Esq., Lockport, NY, for Defendant Yolanda Windley.
Joseph Mistrett, Federal Public Defender, John F. Humann, Assistant Federal Public Defender, Buffalo, NY, for Defendant Lawanda D. Edmond.
Martin L. Schmukler, Esq., New York, NY, for Defendant Joseph Hargrave.
Anne E. Adams, Esq., Buffalo, NY, for Defendant Edward Hearst.
Robert M. Goldstein, Esq., Buffalo, NY, Attorney for Defendant Kevin Weeks.
Nelson S. Torre, Esq., Buffalo, NY, for Defendant Larry Sanger.
Horace A. Hutson, Esq., Buffalo, NY, for Defendant Maure Graham.
John K. Jordan, Esq., Buffalo, NY, for Defendant Willie Morrison.
Joseph M. LaTona, Esq., Buffalo, NY, for Defendant Robert Adams.
Angelo Musitano, Esq., Niagara Falls, NY, for Defendant Joseph Wilkie.
Law Office of J. Glenn Davis, Glenn Davis, of Counsel, Buffalo, NY, for Defendant Justin Palmer J.
Judith M. Kubiniec, Esq., Buffalo, NY, for Defendant Debbie Drake.
Craig Dexter Hannah, Esq., Buffalo, NY, Attorney for Defendant Terrance Askew.
Alan S. Hoffman, Esq., Buffalo, NY, for Defendant Ameer McKnight.
Labin & Buffomante, Richard R. Shaw, II, of Counsel, Williamsville, NY, for Defendant Douglas McPeek.
Herbert R. Johnston, Jr., Esq., Buffalo, NY, for Defendant Kwaine Davis.
John W. Dorn, Esq., Amherst, NY, for Defendant Marvin West.
Lawrence J. Desiderio, Esq., Buffalo, NY, for Defendant Ross Cooper.
LoTempio & Brown, Frank L. LoTempio, Jr., of Counsel, Buffalo, NY, for Defendant Jerome Davis.
Rosenthal, Siegel, Muenkel & Maloney, LLP, Cheryl Meyers-Buth, of Counsel, Buffalo, NY, for Defendant Ayanna Nolley.
Lee Charles LaMendola, Esq., Buffalo, NY, for Terry Mullen.
Burgett & Robbins, Robert A. Liebers, of Counsel, Jamestown, NY, for Defendant Christina Turner.
David Gerald Jay, Esq., Buffalo, NY, for Defendant Robin Gilmore.
Allan P. McCarty, Esq., Hamburg, NY, for Defendant Tiffiani Jackson.
Kevin P. Shelby, Esq., Williamsville, NY, for Defendant Ramona Watson.
John J. Molloy, Esq., West Seneca, NY, for Defendant Howard Degree.
Michael J. Stachowski, Esq., Buffalo, NY, for Defendant Kenya Lee.
Andrew C. LoTempio, Esq., Buffalo, NY, for Defendant Eric Amidon.
Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, Paul J. Cambria, Jr., of
Counsel, Buffalo, NY, for Defendant Ronnie Funderburk.
Defendant Ronnie Funderburk filed an omnibus motion on July 15, 2005, requesting, inter alia, the suppression of evidence obtained via certain electronic eavesdropping warrants and the suppression of statements defendant allegedly made to law enforcement officers. On October 19, 2005, the case was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1)(A). On February 24, 2006, Magistrate Judge Foschio filed a Report and Recommendation, recommending that defendant's motion to suppress evidence obtained via certain electronic eavesdropping warrants be denied. On September 18, 2006, Magistrate Judge Foschio filed an Amended Report and Recommendation, recommending that defendant's motion to suppress his statements be denied.
Defendant filed objections to both Reports and Recommendations on October 23, 2006, and the government filed a response thereto. Oral argument on the objections was held on January 25, 2007.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Reports and Recommendations to which objections have been made. Upon a de novo review of the Reports and Recommendations, and after reviewing the submissions and hearing argument from the parties, the Court adopts the proposed findings of both Reports and Recommendations.
Accordingly, for the reasons set forth in Magistrate Judge Foschio's February 24, 2006 Report and Recommendation and September 18, 2006 Amended Report and Recommendation, the Court denies: (1) defendant's motion to suppress evidence obtained via certain electronic eavesdropping warrants; and (2) defendant's motion to suppress statements defendant allegedly made to law enforcement officers.
Counsel for all the parties in this case shall appear on February 27, 2007 at 9:00 a.m. for a meeting to set a trial date.
SO ORDERED.
REPORT and RECOMMENDATION
This case was referred to the undersigned by the Hon. Richard J. Arcara on October 19, 2005 for all pretrial matters. The matter is presently before the court for a report and recommendation on Defendants' motions seeking suppression of evidence and as to Defendants Pressley, Edmond and Hargrave, seeking dismissal of the Second Superseding Indictment (Doc. Nos. 130, 132, 137-141, 142-146, 150-152, 154, 172, 182 and 189).
Defendant Richard Mullen and six others, including co-defendants Frederick Nolley, Richardson, Edmond, Stranc, Pressley and Hall, were initially indicted in a five count indictment on July 29, 2004, charging violations of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 843(b), 846, 848(a), and 18 U.S.C. § 2. (Docket Item No. 1). Specifically, Defendant Richard Mullen is alone charged in Count 1 of the Indictment with knowingly, willfully, intentionally and unlawfully engaging in a continuing criminal enterprise of which he allegedly organized, supervised, and managed, and from which he allegedly obtained substantial income and resources, in violation of 21 U.S.C. § 848 ("Count 1" or "the CCE Count"). Defendants Richard Mullen, Frederick Nolley, Richardson, Stranc, Hall, Pressley and Edmond were charged with conspiracy to possess with intent to distribute, and to distribute, five kilograms or more of cocaine in violation of 21 U.S.C. § 846 ("Count 2" or "the Conspiracy Count"); Defendants Richard Mullen, Frederick Nolley and Edmond were charged with knowingly, intentionally and unlawfully possessing with intent to distribute five kilograms of cocaine in violation of 21 U.S.C. § 841 ("Count 3"); and Defendants Richard Mullen, Frederick Nolley, Stranc and Edmond were charged with knowingly, intentionally and unlawfully possessing with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 841 ("Count 4"). Additionally, Defendant Hall was charged in Count 5 of the Indictment with knowingly, intentionally, and unlawfully possessing with intent to distribute and distribute five grams or more of cocaine in violation of 21 U.S.C. § 841 ("Count 5").
In a Superseding Indictment, filed January 20, 2005, Defendants Windley, Hargrave, Hearst, Weeks, Sanger, Graham, Morrison, Adams, Wilkie, Palmer, Drake, Askew, McKnight, Douglas McPeek, K. Davis, West, Cooper, J. Davis, Ayanna Nolley, Terry Mullen, Turner, Gilmore, Jackson, Watson, Degree, Lee, and Amidon were added as defendants under the Conspiracy Count. (Docket Item No. 52).1 A Second Superseding Indictment ("the Indictment"), filed on April 28, 2005, added Defendant Funderburk to the Conspiracy Count. (Docket Item No. 116).
By order dated February 4, 2005, June 1, 2005 was established as the deadline for filing all pretrial motions, both dispositive and non-dispositive. (Docket Item No. 81) ("the Scheduling Order"). In accordance with the Scheduling Order, the following motions were filed: Richard Mullen on June 1, 2005 (Docket Item No. 150) ("Eoannou Affirmation"), Frederick Nolley on July 1, 2005 (Docket Item No. 172) ("Terranova Affirmation"), Efrim Richardson on June 1, 2005 (Docket Item No. 145) ("Lobban Affidavit"), Durrian Pressley on June 1, 2005 (Docket Item No. 140) ("Pressley's Motion"), LaWanda Edmond on June 2, 2005 (Docket Item No. 154) ("Humann Affirmation"), Joseph Hargrave on June 2, 2005 (Docket Item No. 152) ("Schmukler Affirmation"), Larry Sanger on May 27, 2005 (Docket Item No. 130) ("Torre Affidavit"), Robert Adams on June 1, 2005 (Docket Item No. 142) ("LaTona Affidavit"), Justin Palmer on May 30, 2005 (Docket Item No. 132) ("Palmer Motion"), Debbie Drake on June 1, 2005 (Docket Item No. 151) ("Drake Motion"), Ross Cooper on June 1, 2005 (Docket Item No. 143) ("Desiderio Affirmation"), Ayanna Nolley on June 1, 2005 (Docket Item No. 138) ("Meyers-Buth Affidavit"), Ameer McKnight on May 31, 2005 (Docket item No. 137) ("Hoffman Affidavit") and on June 1, 2005 (Docket Item No. 141) ("Hoffman Supplemental Affidavit"), Terry Mullen on June 30, 2005 (Docket Item No. 182) ("LaMendola Affidavit"), Kenya Lee on June 1, 2005 (Docket Item No. 139) ("Stachowski Affirmation"), Michael Stranc on June 1, 2005 (Docket Item No. 144) ("Stranc Motion"), and Ronnie Funderburk on July 15, 2005 (Docket Item No. 189) ("Funderburk's Motion") ("Moving Defendants" ).2, 3, 4, 5, 6 The Government was directed to file its response to such motions by August 31, 2005.
On August 30, 2005, the court granted the Government's request for an extension to file its response to Defendants' motions not later than September 2, 2005. (Docket Item No. 216). On September 2, 2005, the Government filed the Government's Response to Omnibus Motion in response to Defendants' motions. (Docket Item No. 223) ("Government's Response"). As noted, oral argument was conducted on October 11, 2005.7 On February 13, 2006...
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