U.S. v. Mullen

Decision Date15 September 2006
Docket NumberNo. 04-CR-189A.,04-CR-189A.
Citation451 F.Supp.2d 509
PartiesUNITED STATES of America, v. Richard MULLEN, Joseph Hargrave, Robert Adams, Defendants.
CourtU.S. District Court — Western District of New York

Kathleen M. Mehltretter, Acting United States Attorney, Mary C. Kane, of Counsel, Buffalo, NY, Attorney for the Government.

Leigh E. Anderson, Esq., Buffalo, NY, Attorney for Defendant Richard Mullen.

Law Office of David J. Seeger, David J. Seeger, of Counsel, Buffalo, NY, Attorneys for Defendant Richard Mullen.

Joseph J. Terranova, Esq., Hamburg, NY, Attorney for Defendant Frederick Nolley.

Loren D. Lobban, The Bullard Lobban Law Group, Buffalo, NY, Attorney for Defendant Efrim K. Richardson.

Sean Dennis Hill, Esq., Buffalo, NY, Attorney for Defendant Michael Stranc.

Cohen & Lombardo, P.C., Robert N. Convissar, of Counsel, Buffalo, NY, Attorneys for Defendant Andre Hall.

Terry Granger, Esq., Buffalo, NY, Attorney for Defendant Durrian Pressley.

Matthew P. Pynn, Esq., Lockport, NY, Attorney for Defendant Yolanda Windley.

Joseph Mistrett, Federal Public Defender, John F. Humann, Assistant Federal Public Defender, Buffalo, NY, Attorney for Defendant LaWanda D. Edmond.

Martin L. Schmukler, Esq., New York, NY, Attorney for Defendant Joseph Hargrave.

Anne E. Adams, Esq., Buffalo, NY, Attorney for Defendant Edward Hearst.

Robert M. Goldstein, Esq., Buffalo, NY, Attorney for Defendant Kevin Weeks.

Nelson S. Torre, Esq., Buffalo, NY, Attorney for Defendant Larry Sanger.

Horace A. Hutson, Esq., Buffalo, NY, Attorney for Defendant Maure Graham.

John K. Jordan, Esq., Buffalo, NY, Attorney for Defendant Willie Morrison.

Joseph M. LaTona, Esq., Buffalo, NY, Attorney for Defendant Robert Adams.

Angelo Musitano, Esq., Niagara Falls, NY, Attorney for Defendant Joseph Wilkie.

Law Office of J. Glenn Davis, J. Glenn Davis, of Counsel, Buffalo, NY, Attorney for Defendant. Justin Palmer.

Judith M. Kubiniec, Esq., Buffalo, NY, Attorney for Defendant Debbie Drake.

Craig Dexter Hannah, Esq., Buffalo, NY, Attorney for Defendant Terrance Askew.

Alan S. Hoffman, Esq., Buffalo, NY, Attorney for Defendant Ameer McKnight.

Labin & Buffomante, Richard R. Shaw, II, of Counsel, Williamsville, NY, Attorney for Defendant Douglas McPeek.

Herbert R. Johnston, Jr., Esq., Buffalo, NY, Attorney for Defendant Kwaine Davis.

John W. Dorn, Esq., Amherst, NY, Attorney for Defendant Marvin West.

Lawrence J. Desiderio, Esq., Buffalo, NY, Attorney for Defendant Ross Cooper.

LoTempio & Brown, Frank L. LoTempio, Jr., of Counsel, Buffalo, NY, Attorneys for Defendant Jerome Davis.

Rosenthal, Siegel, Muenkel & Maloney, LLP, Cheryl Meyers-Buth, of Counsel, Buffalo, NY, Attorneys for Defendant Ayanna Nolley.

Lee Charles LaMendola, Esq., Buffalo, NY, Attorney for, Terry Mullen.

Burgett & Robbins, Robert A. Liebers, of Counsel, Jamestown, NY, Attorneys for Defendant Christina Turner.

David Gerald Jay, Esq., Buffalo, NY, Attorney for Defendant Robin Gilmore.

Allan P. McCarty, Esq., Hamburg, NY, Attorney for Defendant Tiffiani Jackson.

Kevin P. Shelby, Esq., Williamsville, NY, Attorney for Defendant Ramona Watson.

John J. Molloy, Esq., West Seneca, NY, Attorney for Defendant Howard Degree.

Michael J. Stachowski, Esq., Buffalo, NY, Attorney for Defendant Kenya Lee.

Andrew C. LoTempio, Esq., Buffalo, NY, Attorney for Defendant Eric Amidon.

Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, Paul J. Cambria, Jr., of Counsel, Buffalo, NY, Attorneys for Defendant Ronnie Funderburk.

ORDER

ARCARA, Chief District Judge.

This case was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1)(A), on October 19, 2005. Defendants filed omnibus motions seeking inter alia suppression of evidence, dismissal of the Second Superseding Indictment, a bill of particulars and other discovery.

On February 24, 2006, Magistrate Judge Foschio filed a Report and. Recommendation, recommending that defendants' motions for dismissal of the indictment and for suppression of evidence should be denied. On that same date, Magistrate Judge Foschio filed a Decision and Order denying in part and granting in part the defendants' motions for a bill of particulars and other discovery.

Defendants Adams and Hargrave filed objections to Magistrate Judge Foschio's Report and Recommendation. Defendant Adams also filed an appeal of Magistrate Judge Foschio's Decision and Order. The Court heard argument on the objections on August 15, 2003.

Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions and hearing oral argument, the Court adopts the proposed findings of the Report and Recommendation.1 Accordingly, for the reasons set forth in Magistrate Judge Foschio's Report and Recommendation, defendants' motions to dismiss and to suppress evidence are denied.

Pursuant to 28 U.S.C. § 636(b)(1)(A), the district court "may reconsider any pretrial matter under this [section] where it has been shown that the magistrate's order is clearly erroneous or contrary to law." The Court has reviewed defendant Adams' objections and Magistrate Judge Foschio's Decision and Order. Upon such review and after hearing argument from counsel, the Court finds that Magistrate Judge Foschio's Decision and Order is neither clearly erroneous nor contrary to law. Accordingly, the Court affirms Magistrate Judge Foschio's Decision and Order.

The case is referred back to Magistrate Judge Foschio for further proceedings.

IT IS SO ORDERED.

REPORT and RECOMMENDATION

FOSCHIO, Magistrate Judge.

JURISDICTION

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).

BACKGROUND

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"), ...

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