U.S. v. Longo
| Citation | 70 F.Supp.2d 225 |
| Decision Date | 05 August 1999 |
| Docket Number | No. 97-CR-180S.,97-CR-180S. |
| Parties | UNITED STATES of America, v. Thomas G. LONGO, Defendant. |
| Court | U.S. District Court — Western District of New York |
Denise E. O'Donnell, United States Attorney, James P. Kennedy, Assistant United States Attorney, of counsel, Buffalo, New York, for the Government.
Lipsitz, Green, Fahringer, Roll, Salisbury, & Cambria, Paul J. Cambria, Jr., of counsel, Buffalo, New York, Summers, Anthony, & Vargas, William L. Summers, of counsel, Cleveland, Ohio, Joseph Beeler, Miami, Florida, for defendant.
DECISION AND ORDER
Presently before this Court are Defendant Thomas G. Longo's appeal of the Decision and Order of the Honorable Leslie G. Foschio, United States Magistrate Judge, filed on February 26, 1999, and Longo's objections to the Report and Recommendation of Judge Foschio, also filed on February 26, 1999. Longo is charged in a four count Indictment, dated September 19, 1997, with violations of 21 U.S.C. §§ 841(a)(1) and 846, 18 U.S.C. § 2, and 18 U.S.C. § 1952(a)(3). Specifically, Longo is charged with conspiracy with intent to distribute 100 kilograms or more of marijuana, with attempt to possess with intent to distribute 100 kilograms or more of marijuana, with conspiracy to travel interstate, and traveling interstate, and with the intent to carry on an unlawful activity through the use of a business enterprise involving the unlawful distribution of marijuana. On February 4, 1999, this Court referred this case to Judge Foschio for disposition of all pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A) and for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
On October 5, 1998, Longo filed extensive Omnibus Motions before Judge Foschio. By these motions, Longo made various discovery requests and, in addition, sought suppression of evidence and/or for evidentiary hearings, and sought another hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). On February 26, 1999, Judge Foschio filed the Decision and Order, which primarily addresses discovery and disclosure issues, and the Report and Recommendation, which primarily addresses the suppression and hearing motions. Most of Longo's requests were denied by Judge Foschio. Longo now appeals Judge Foschio's decision and objects to Judge Foschio's recommendations almost in their entirety.1 Longo filed his appeal of the Decision and Order and his objections to the Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.3.
By his appeal of the Decision and Order, Longo disputes Judge Foschio's denial of Longo's Motions: (1) for Disclosure of Records Relating to the Search at his Law Office; (2) to Produce Brady Material; (3) for Disclosure of Impairments in the Testimonial Capacity of Prosecution Witnesses; (4) for Discovery of Specified Items; (5) for Request for Notice Pursuant to Fed. R.Crim.P. 12(d)(2); (6) for Access to Sealed Court Documents; (7) for Production of Statements of Persons Who are Not Prospective Government Witnesses; (8) for Disclosure of Non-Privileged Grand Jury Information; (9) for a Bill of Particulars; (10) to Preserve Evidence and Access to Potential Witnesses; and (11) Longo appeals Judge Foschio's decision to grant the Government's Motions to Disclose.2
By his objections to the Report and Recommendation, Longo opposes Judge Foschio's recommendations that: (1) the search warrant of Longo's computer files was supported by probable cause; (2) the warrant was sufficiently particular; (3) a warrantless search was not conducted; (4) the warrant was conducted in good faith; (5) a Franks hearing is not warranted; (6) suppression of recorded statements should be denied; (7) the attorney-client privilege was not violated; (8) Longo's Sixth Amendment rights were not violated; (9) the Government did not violate DR 7-104; (10) Longo's Fifth Amendment rights were not violated; and (11) Longo's requests for an evidentiary hearing be denied.
For the reasons set forth below, this Court denies Longo's appeal of the Decision and Order ("D & O") and adopts the Report and Recommendation ("R & R"), thereby denying Longo's motion to suppress evidence and/or for evidentiary hearings, and for a Franks hearing.3
The charges against Longo arose after the arrest of Lester Williams and William Cope in March of 1996, following their attempt to purchase 1,000 pounds of marijuana from undercover agents. (R & R at 3-4.) At the time of arrest $146,000 was seized, which was to be used as a down payment on the marijuana. (Meinhardt Aff. at 2.) Williams and Cope agreed to cooperate with the Government, and information was developed regarding Longo's participation in providing a portion of the funds that were to be used to purchase the marijuana. (R & R at 4.)
Williams told the Government that he and Longo were partners in a bar/restaurant named Wizard's Inn. (R & R at 4.) In July of 1995 the establishment burned to the ground and Longo received a settlement check for $130,000, which was deposited into his business account. (R & R at 4.) Caroline Schweter, Longo's legal secretary, cut two checks, each for $65,000, made payable to Williams and Longo. (Gov't Omnibus Resp. at 4.) Longo and Williams traveled to Caesar's Palace, Atlantic City, on March 1, 1996, and deposited the checks at the casino. (Meinhardt Aff. at 3.) Within the next 24 hours they converted the funds to cash and returned to Cleveland. (Meinhardt Aff. at 3.)
Williams supplied the Government with a Promissory Note, backdated to February 29, 1996, and a Purchase Agreement signed by him and Longo. (Meinhardt Aff. at 4.) These documents allegedly purported to represent a legitimate business transaction, in which Longo purchased the remaining half of the business, for $50,000, in return for Longo canceling the Promissory Note, valued at $65,000. After Williams was arrested, he recorded conversations with Longo. (Ex. C to Longo Omnibus Mot.)
During the investigation, the Government received information from Schweter. (Meinhardt Aff. at 5.) She advised the Government that the Promissory Note was backdated and that Longo and his attorney had questioned her about her testimony to the Grand Jury. (Id. at 5.) Schweter also gave the Government the file and directory names of both documents, which existed in her computer, and drew a schematic of Longo's office, indicating where her computer was located. (Id. at 6.)
A search warrant was issued by the Honorable Patricia A. Hemann, United States Magistrate Judge for the Northern District of Ohio. While executing the search, the Government agents confirmed that both the Promissory Note and the Purchase Agreement were stored in Schweter's computer. (Gov't Omnibus Resp. at 10.)
On September 19, 1997, Longo was indicted on charges of conspiracy with intent to distribute 100 kilograms or more of marijuana, attempt to possess with intent to distribute 100 kilograms or more of marijuana, conspiracy to travel interstate, and traveling interstate, and with the intent to carry on an unlawful activity through the use of a business enterprise involving the unlawful distribution of marijuana. Longo filed extensive Omnibus Motions before Judge Foschio. On February 26, 1999, Judge Foschio filed the Decision and Order and the Report and Recommendation, which denied most of Longo's requests. Longo now appeals Judge Foschio's recommendations and decision almost in their entirety.
On February 4, 1999, this Court referred this case to Judge Foschio for disposition of all pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A) and for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Pursuant to 28 U.S.C. § 636(b)(1), a magistrate's decision and order on a nondispositive issue should be reviewed by the district judge according to the clearly erroneous standard. See United States v. Raddatz, 447 U.S. 667, 673, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980).
Pursuant to 28 U.S.C. § 636(b)(1)(B), a district court judge may designate a magistrate judge to submit proposed findings of fact and recommendations for disposition on a defendant's motion in a criminal case. However, the parties have an opportunity to object to the magistrate judge's proposed findings. Upon the filing of timely objections, the district judge must conduct a de novo review of the magistrate judge's report and recommendation "upon the record, or after additional evidence," but only as to those portions of the report and recommendation to which the party objects. Fed.R.Civ.P. 72(b). See also Grassia v. Scully, 892 F.2d 16, 19 (2d Cir.1989). The district court is not required to conduct a de novo hearing on the matter, but the court must arrive at its own independent conclusion about those portions of the magistrate's report and recommendation to which the objection is made. See East River Sav. Bank v. Secretary of Housing & Urban Development, 702 F.Supp. 448, 452 (S.D.N.Y.1988). Following this determination: 28 U.S.C. § 636(b)(1)(C). Finally, although a de novo review requires the district court to independently consider and arrive at its own conclusions regarding the portions of the magistrate judge's report and recommendation that were objected to, the district court need not specifically articulate all of its reasons for rejecting a party's objections. See Murphy v....
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