U.S. v. O'Neill
| Decision Date | 19 October 1998 |
| Docket Number | No. 97-CR-98.,97-CR-98. |
| Citation | 27 F.Supp.2d 1121 |
| Parties | UNITED STATES of America, Plaintiff, v. Kevin P. O'NEILL, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Wisconsin |
William O. Marquis, Milwaukee, WI, for Kevin P. O'Neill.
Ann T. Bowe, Milwaukee, WI, for Carl J. Warneke.
Edward J. Hunt, Milwaukee, WI, for Raymond L. Morgan, Jr.
Daniel Resheter, Jr., Milwaukee, WI, for Robert A. Kruppstadt.
Michael R. Barth, Brookfield, WI, for Richard E. Mroch.
James C. Reiher, Milwaukee, WI, for Johnson F. Blake.
Thomas G. Halloran, Milwaukee, WI, for William B. Brock.
Robert J. Penegor, Brookfield, WI, for James E. Hanson.
Pamela Pepper, Milwaukee, WI, for Allen J. McVay.
Robert LeBell, Milwaukee, WI, for James E. Meinen, Jr.
Franklyn Gimbel, Milwaukee, WI, for Randall E. Miller.
Christopher T. Van Wagner, Madison, WI, for Harvey E. Powers.
Dean A. Strang, Milwaukee, WI, for James C. Rostron.
Charles W. Giesen, Madison, WI, for Leslie John Jensen.
On June 3, 1998, Magistrate Judge William E. Callahan, Jr. issued a recommendation and order addressing the second round of pretrial motions ("Round II") in the above-entitled case. The second round of pretrial motions includes motions to suppress and motions to dismiss based upon evidentiary arguments. Pursuant to 28 U.S.C. § 636(b)(1)(A), the defendants filed objections to the magistrate's recommendation and order. On July 30, 1998, the government filed its response to many of the defendants' objections. The court will address the issues in the same order as presented by the magistrate where possible.
Magistrate Callahan denied defendant Kevin P. O'Neill's "Motion for Discovery Related to Motion to Suppress Title III Evidence" (joined by defendant Meinen), Recommendation and Order at 57, and recommended the denial of O'Neill's "Omnibus Motion to Suppress Evidence Intercepted or Gathered under Title III" (joined by defendants Kruppstadt, McVay, Meinen, Powers, and Blake). Recommendation and Order at 25, 27, 41, 50, 55. O'Neill now objects to the magistrate's Recommendation and Order at, inter alia, pages 25, 27, and 41.
Magistrate Callahan recommended the rejection of O'Neill's motion to suppress to the extent that such motion was grounded on the argument of the lack of probable cause and/or lack of necessity. Recommendation and Order at 25. The entirety of O'Neill's objection to the recommendation regarding alleged lack of probable cause is as follows:
Before a Title III order is given, an application must demonstrate probable cause (sec.2518(1)(b) and (3)[sic]). This must include probable cause to [sic] the individuals, or targets, to [sic] the particular communications, and to [sic] the particular facilities. Based upon his motion and prior brief and memorandum, Defendant O'Neill objects to and disputes the Magistrate's findings, and ultimate ruling as proclaimed at page 25.
Defendant O'Neill's Memorandum in Support of Objections to the Magistrate's Recommendation and Order (Second Submission on Objections to the Order) (hereinafter "O'Neill's Second Objections") at 3-4.
Generalized objections, absent specific legal authority, do not invoke the district court's obligation to perform a de novo review of a magistrate's decision: "De novo review of a magistrate judge's recommendation is required only for those portions of the recommendation for which particularized objections, accompanied by legal authority and argument in support of the objections, are made." Banta Corp. v. Hunter Publ'g Ltd., 915 F.Supp. 80, 81 (E.D.Wis.1995). United States v. Molinaro, 683 F.Supp. 205, 211 (E.D.Wis.1988); see also Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ().
Therefore, defendant O'Neill's generalized objection to the recommendation regarding alleged lack of probable cause does not invoke this court's duty to review the magistrate's recommendation pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 13.03(c). For this reason, the court will not perform a de novo review and will therefore adopt the magistrate's recommendation to deny O'Neill's motion to suppress to the extent that such motion was grounded on the argument of lack of probable cause.1
O'Neill also objects to the magistrate's recommendation that this court reject O'Neill's motion to suppress to the extent that such motion was grounded on the argument of lack of necessity. Recommendation and Order at 25. O'Neill's objection to this recommendation is also quite succinct:
Defendant O'Neill has made extensive arguments on this issue in prior submissions, and will not duplicate them here, but asks that this Court review these carefully in addressing this issue. One major theme presented there is that the necessity portions of the applications are nearly identical in each application and continuing applications. These are not only redundant, but they are all based on affidavits signed by a witness whose credibility has been called into question around [sic] these issues. Yet the Magistrate, in reviewing this issue, simply takes statements from this agent's affidavits as explanation as well as findings that necessity exists. Such reliance is misplaced and insufficient. This Court must have a hearing on the true "necessity" of these Title III intrusions.
O'Neill's Second Objections at 4-5.
As stated above, general statements of objection and blanket references to arguments previously made to the magistrate will not suffice. See Molinaro, 683 F.Supp. at 211. Regarding O'Neill's argument that the identity of necessity sections of the surveillance applications somehow calls their validity into question, O'Neill has not presented any legal support for this argument. If anything, the consistency and thoroughness of these sections indicates that the government exhausted all other possible avenues of investigation, which, as Magistrate Callahan noted, is the important issue here. Regarding O'Neill's cursory argument that the credibility of the witness who signed the affidavits supporting the surveillance applications "has been called into question," the court refuses to reject the magistrate's well-reasoned and comprehensive recommendation regarding necessity on the basis of such a flimsy and unsupported accusation. Therefore, the court will adopt the magistrate's recommendation to deny O'Neill's motion to suppress to the extent that this motion was grounded on the argument of lack of necessity.
O'Neill also objects to the magistrate's recommendation to deny O'Neill's motion to suppress to the extent the motion argues that all electronic surveillance applications and orders are invalid because they refer to 18 U.S.C. § 842(h), a crime not specified in Title III, 18 U.S.C. § 2516(1) (). O'Neill's objection to this recommendation is the shortest of all of his objections — in response to the magistrate's statement that inclusion of section 842(h) does not mean that all interceptions are to be suppressed, O'Neill simply states that O'Neill's Second Objections at 9-10.
O'Neill's verbal ruminations are no substitute for legal analysis and citation to authority. O'Neill offers no support for his argument that inclusion of a reference to a non-listed offense in the surveillance authorizations completely invalidates those authorizations. Indeed, relevant authority indicates that quite the opposite is true. See United States v. Marcy, 777 F.Supp. 1400, 1403 (N.D.Ill.1991) (). As Magistrate Callahan notes, all of the other numerous offenses listed in the surveillance applications and authorizations are listed in section 2516(1). Recommendation and Order at 25. Therefore, the court will adopt the magistrate's recommendation to deny O'Neill's motion to suppress to the extent the motion argues that all electronic surveillance applications and orders are invalid because they refer to 18 U.S.C. § 842(h).
O'Neill further objects to the recommendation to deny O'Neill's motion to suppress to the extent the motion argues that the evidence gathered through the surveillance relates to crimes not specified in the authorizing orders and for which the government had not sought subsequent authorization. The magistrate first held that although the government charged defendants with crimes not specified in the original surveillance authorizations, these crimes involve the same facts and elements as those listed in the original surveillance authorizations, so defendants "cannot be harmed" by the government's failure to seek subsequent authorizations. Recommendation and Order at 27. The magistrate then held that even if the government should have sought subsequent authorization, it "is not precluded from yet obtaining such an order authorizing the use of such evidence at trial." Id. O'Neill...
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