U.S. v. Jackson

Decision Date01 September 2006
Docket NumberNo. 05-CR-174.,05-CR-174.
Citation493 F.Supp.2d 592
PartiesUNITED STATES of America, v. Michael Ray JACKSON, Randall Parker, a/k/a Randall, a/k/a Randy Parker, a/k/a Randall Parker, Defendants.
CourtU.S. District Court — Western District of New York

Terrance P. Flynn, United States Attorney, Joel L. Violanti, Assistant United States Attorney, of Counsel, Buffalo, NY, for the Government.

Thomas J. Eoannou, Esq., Eoannou, Lana & D'Amico, Buffalo, NY, for Defendant, Michael Ray Jackson.

J. Glenn Davis, Esq., Law Office of J. Glenn Davis, Buffalo, NY, for Defendant, Randall Parker.

ORDER

ARCARA, Chief Judge.

The above-referenced case was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1)(A) on March 14, 2006. Defendants filed motions seeking suppression of eavesdropping and physical evidence. On May 17, 2006, Magistrate Judge Foschio filed a Report and Recommendation, recommending that defendants' motions should be denied.

On June 2, 2006, defendants filed a motion for extension of time to file objections to the Magistrate Judge's Report and Recommendation. The Court granted defendants' motion and extended the time to file objections to June 30, 2006. On June 26, 2006, defendants filed a second motion for extension of time to file objections to the Magistrate Judge's Report and Recommendation. The Court granted the defendants' motion and extended the time to file objections to July 26, 2006. No objections have been filed to date.

The Court has carefully reviewed the Report and Recommendation, the record in this case, and the pleadings and materials submitted by the parties. No objections having been timely filed, it is hereby

ORDERED, that pursuant to 28 U.S.C. § 636(b)(1), and for the reasons set forth in Magistrate Judge Foschio's Report and Recommendation, defendants' motions seeking suppression of eavesdropping and physical evidence are denied. The parties shall appear on Tuesday, September 5, 2006 at 9:00 a.m. for a meeting to set a trial date.

IT IS SO ORDERED.

REPORT and RECOMMENDATION

FOSCHIO, United States Magistrate Judge.

JURISDICTION

This case was referred to the undersigned by the Hon. Richard J. Arcara on March 14, 2006 for all pretrial matters. The matter is presently before the court on Defendants' motions seeking suppression of eavesdropping and physical evidence (Doc. Nos.15, 16).

BACKGROUND

Defendants Michael Ray Jackson ("Jackson") and Randall Parker ("Parker") ("Defendants") were initially indicted in a seven count indictment on July 7, 2005, charging violations of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 841(b)(1)(C) and 21 U.S.C. § 846. (Doc. No. 1). Specifically, Defendants are together charged in Count 1 of the Indictment with conspiracy to possess with intent to distribute, 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 21 U.S.C. § 846. ("Count 1" or "the Conspiracy Count"). Jackson is alone charged with knowingly, intentionally, and unlawfully possessing with intent to distribute a quantity of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) on or about December 1, 2004 ("Count 2"), January 14, 2005 ("Count 3") and April 15, 2005 ("Count 6"). Parker is alone charged with knowingly, intentionally and unlawfully possessing with intent to distribute a quantity of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) on or about January 28, 2005 ("Count 4"), February 8, 2005 ("Count 5"), and June 3, 2005 ("Count 7").

In support of their respective motions, Parker filed the Affirmation of J. Glenn Davis, Esq. (Doc. No. 15) ("Davis Affirmation") on February 10, 2006, and Jackson filed the Affirmation of Thomas J. Eoannou, Esq. (Doc. No. 16) ("Eoannou Affirmation") on February 12, 2006.1 ("Defendants' Motions"). The Government filed its response to Defendants' Motions on March 8, 2006 (Doc. No. 18) ("Government's Response"). Jackson filed a Reply to the Government's Response on March 12, 2006 (Doc. No. 20) ("Jackson Reply Memorandum"), and oral argument was held on March 16, 2006 (Doc. No. 22). On March 27, 2006, the Government filed the Government's Surreply to Jackson's Reply Memorandum (Doc. No. 24) ("Government's Surreply").

Defendants' Motions include requests for suppression of Title III evidence, suppression of evidence obtained pursuant to the search warrant issued on July 11, 2005, and a request for a hearing pursuant to Franks v. Delaware.2 Based on the following, Defendants' Motions should be DENIED.

FACTS3

The charges in the Indictment arise from an investigation conducted by the Drug Enforcement Agency ("DEA"), the New York State Police ("NYSP"), the Niagara County Sheriff's Department ("NCSD"), the Niagara Frontier Transportation Authority ("NFTA"), the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"), the Buffalo Police Department ("BPD"), Federal Bureau of Investigation ("FBI") and other law enforcement agencies of an alleged cocaine possession and distribution conspiracy. Jackson and Parker are alleged co-conspirators in a drug trafficking conspiracy operating in and around Buffalo, New York. According to the Government, Jackson and Parker obtained large quantities of cocaine from suppliers who are Mexican nationals in Los Angeles, California. The Los Angeles suppliers have been identified as two brothers, Eduardo Medina and Nelson Medina ("the Medinas"). The Medinas are members of the "Florence Gang," which is involved in narcotics distribution. Investigators have learned the Medinas route the narcotics through Atlanta, Georgia before it arrives in Buffalo. The Medinas send dispatchers to Western New York where Defendants and those acting on their behalf retrieve the cocaine. According to the Government, Defendants proceed to distribute the drugs throughout Western New York utilizing mid-level dealers within their narcotics trafficking organization. Investigators also learned that Jackson and Parker had an independent cocaine source located in Columbus, Ohio.

Defendants and their associates within the narcotics organization refer to themselves as the "TALIBAN." Members of the TALIBAN allegedly include Martellus Jones, a/k/a Fat Bob, a/k/a Marty; Parker; Jackson; Maurice Fisher; a/k/a Reese; Emilio Galarza, a/k/a Boongo; Irving Mitchel, a/k/a Gotti; Karen Pierce, a/k/a Karen Burns, a/k/a Momma-Love; Danielle Liddle and Steven Anthony Bennett, a/k/a Stevo. Martellus Jones is the alleged leader of the TALIBAN organization.

In September 2004, DEA agents learned from a confidential informant ("CS-1") that Parker and Jackson were drug traffickers and members of a drug distribution gang which called themselves the TALIBAN. CS-1 stated that he/she would contact Martellus Jones ("Jones") on his cellular telephone, (716) 228-4556, to purchase cocaine. If CS-1 was unable to contact Jones by phone, he/she would attempt to meet Jones in person at 358 Grant Street, a "private club" operated by Jackson, or at 593 Grant Street, Jones's mother's residence, in the City of Buffalo. CS-1 could also contact Jackson at 358 Grant Street. If CS-1 could not locate Jones, Karen Pierce ("Pierce"), Jones's mother, would facilitate contact for the purpose of purchasing narcotics. CS-1 and a second confidential informant ("CS-2") advised law enforcement that when Jones goes to jail for weapons possession, Maurice Fisher will run the TALIBAN organization.

A third confidential informant ("CS-3") described Jackson and Parker as Jones's associates, and identified various residences the TALIBAN utilized for narcotics distribution. CS-1, CS-2 and CS-3 made a series of controlled purchases from Jones, Parker and Jackson at the DEA's request.

On June 9, 2005 and June 22, 2005, Buffalo Police Detective Philip Torre ("Detective Torre") filed two separate affidavits requesting telephone intercept orders from the Erie County Court. The Torre Affidavit I, filed on June 9, 2005, requested an intercept order for cellular phone numbers (716) 578-1148, (716) 228-4556 and (716) 228-4556 Push to Talk "Ready Link" Service ("PTT"). The Torre Affidavit II, filed on June 22, 2005, requested an intercept order for cellular phone number (716) 888-0930 and telephone number (716) 885-4287. Erie County Court Judge Michael L. D'Amico issued an intercept warrant for cellular telephone number (716) 578-1148, on June 10, 2005, which became effective June 13, 2005 and which was used and subscribed to by Randall Parker. Judge D'Amico also issued an intercept warrant for cellular telephone numbers (716) 228-4556 and (716) 228-4556(PTT) on June 10, 2005, which became effective June 13, 2005 and which were used by Martellus Jones and subscribed to by Karen Burns. On, June 22, 2005, Judge D'Amico issued intercept warrants for numbers (716) 885-4287 and (716) 888-0930. DEA Special Agent Joseph Bongiovanni ("Agent Bongiovanni") submitted an affidavit requesting a warrant for various premises, including 108 Decker Street in Buffalo, New York and 39 Allendale Drive in Cheektowaga, New York. In his moving papers, Defendant Jackson challenges the probable cause basis for these orders, alleging that Agent Torre's description in Torre Affidavit II of the controlled narcotics purchase which took place on January 14, 2005 failed to identify any target telephone number used in the transaction. Eoannou Affirmation ¶ 51.

A confidential informant ("CS") informed DEA Special Agent Dale Kasprzyk ("Agent Kasprzyk") that Defendant Parker is a bartender at Defendant Jackson's "private club," located at 358 Grant Street. The CS also stated Parker distributes cocaine to the club's customers and that CS could purchase cocaine from Parker. On January 28, 2005, the CS made a controlled purchase of 2½ ounces of cocaine from Parker at 358 Grant Street, which required Parker to walk behind the bar at the club and retrieve the narcotic from a different room. CS contacted Parker by cell phone number (716) 602-0897 to arrange ,...

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