U.S. v. Parker

Decision Date19 April 2001
Docket NumberNo. 00-CR-053A.,00-CR-053A.
Citation165 F.Supp.2d 431
PartiesUNITED STATES of America, v. Darnyl PARKER, John A. Ferby, David Rodriguez, Robert E. Hill, William Parker, Defendants.
CourtU.S. District Court — Western District of New York

Denise E. O'Donnell, United States Attorney, Buffalo, NY (Robert C. Moscati and Kathleen M. Mehltretter, Assistant United States Attorneys, of Counsel), for Government.

Harrington & Mahoney, Buffalo, NY (Mark J. Mahoney, of Counsel), for Defendants Darnyl Parker.

Anne E. Adams, Buffalo, NY, for Defendant Ferby.

Brown & Kelly, LLP, Buffalo, NY (Rodney O. Personius, of Counsel), for Defendant Rodriguez.

Juan E. Irene, Buffalo, NY, for Defendant Rodriguez.

Steiner & Blotnik, Buffalo, NY (Michael M. Blotnik, of Counsel), for Defendant Hill.

Michael J. Stachowski, Buffalo, NY, for Defendant William Parker.

Pratcher & Associates, Buffalo, NY (Joseph M. Cox, of Counsel), for Defendant Sayles.

DECISION AND ORDER

ARCARA, District Judge.

This case was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1)(A), on April 7, 2000. On December 22, 2000, defendants filed a joint motion for dismissal, to strike surplusage and for suppression of evidence. On January 10, 2001, the government filed a response to the motion. Magistrate Judge Foschio heard oral argument on the motion on March 15, 2001.

On April 19, 2001, Magistrate Judge Foschio filed a Report and Recommendation, recommending that the defendants' joint motion to dismiss and for suppression of evidence be denied.

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 58.2(a)(2) of the Local Rules of Criminal Procedure for the United States District Court for the Western District of New York ("Local Rules of Criminal Procedure"), defendants were required to file any objections to the Magistrate Judge's Report and Recommendation by May 7, 2001. On May 3, 2001, defendants filed a motion for an extension of time to file objections, stating that they needed additional time to evaluate the 78-page Report and Recommendation. On May 4, 2001, the Court granted the motion and extended the time to file objections to June 4, 2001.

On June 4, 2001, defendants filed a second motion for extension of time. This time, defendants stated the need for the extension as follows:

While a draft of these objections has been prepared, this additional time is needed in order to circulate and finalize the objections. That process necessarily requires the coordination of efforts and incorporation of changes and revisions among counsel for five of the six defendants.

That same day, June 4, 2001, the Court granted defendants' motion and extended the time to file objections to June 8, 2001.

On Friday, June 8, 2001, at 4:27 p.m., defendants filed yet a third motion for extension of time. This time, defendants explained the need for the extension as follows:

While a draft of these objections has been prepared, this additional time is needed in order to circulate and finalize the objections. That process necessarily requires the coordination of efforts and incorporation of changes and revisions among counsel for five of the six defendants.

This is obviously the exact same reason given in their June 4th motion.

On Monday, June 11, 2001, before the Court had a chance to rule on or even consider the June 8th motion for an extension defendants submitted their proposed objections. The objections are 93 pages long.1 Along with the objections, defendants filed a motion for permission to exceed the 25-page limit for briefs contained in Rule 49.1(e) of the Local Rules of Criminal Procedure.

After careful consideration, the Court denies defendants' June 8th motion for extension of time. Defendants waited until the last minute to file their extension motion, clearly assuming that the Court would automatically grant the motion. However, the Court has granted defendants two previous extensions, and they have cited no new reason for a third extension. Defendants have already been given additional time to circulate and finalize their proposed objections. No satisfactory explanation is given as to why the time was insufficient. Absent a sufficient reason, this Court expects that its scheduling orders will be obeyed. Scheduling orders are not mere formalities that can be disregarded or treated cavalierly. Waiting until one-half hour before the close of business on the day the objections are due to file a motion for an extension of time demonstrates a lack diligence in trying to comply with the Court's scheduling orders.

Accordingly, because defendants' objections were not filed by June 8, 2001, they are untimely and the Court shall not consider them.2

After carefully reviewing the Report and Recommendation, the record in this case, and the pleadings and materials submitted by the parties, and no objections having been timely filed, it is hereby

ORDERED, that pursuant to 28 U.S.C. § 636(b)(1)(A), and for the reasons set forth in Magistrate Judge Foschio's Report and Recommendation, the defendants' joint motion to dismiss and for suppression of evidence is denied. Trial in this case shall commence on July 17, 2001 at 9:30 a.m. A final pretrial conference shall be held on July 5, 2001 at 2:00 p.m.

IT IS SO ORDERED.

REPORT and RECOMMENDATION

FOSCHIO, United States Magistrate Judge.

JURISDICTION

This matter was referred to the undersigned, pursuant to 28 U.S.C. §§ 636(b)(1)(A) and 636(b)(1)(B), on April 7, 2000 by Hon. Richard J. Arcara. The matter is presently before the court on Defendants' Joint Motion for Dismissal, to Strike Surplusage, and for Suppression of Evidence filed December 22, 2000 ("Defendants' Motion") (Doc. # 66).1

BACKGROUND

In this case, Defendants Darnyl Parker, Ferby, Rodriguez, and Hill are charged with violating 18 U.S.C. § 241, conspiracy to violate federally protected civil rights (Count I); and 18 U.S.C. § 371, conspiracy to commit theft of government property in violation of 18 U.S.C. § 641 (Count II); Defendants Darnyl Parker, Ferby, and Rodriguez are charged with theft of government property on January 7, 2000, in violation of 18 U.S.C. §§ 641 and 2 (Count III). Defendants Darnyl Parker, Ferby, Rodriguez, and Hill are charged with theft of government property on February 13, 2000, in violation of 18 U.S.C. §§ 641 and 2 (Count IV).

Count V of the Indictment charges Defendants Darnyl Parker, Ferby, Rodriguez, and Hill with conspiracy to commit robbery and extortion, including under color of official right, in violation of 18 U.S.C. § 1951. Count VI of the Indictment charges Defendants Darnyl Parker, Ferby, Rodriguez, and Hill with an attempted violation of 18 U.S.C. §§ 1951 and 2, by robbery and extortion, including under color of official right, on February 13, 2000, by the taking and obtaining of $36,442 from an undercover agent believed by Defendants to be a drug dealer. Count VII charges Darnyl Parker, Ferby, Rodriguez, and Hill with a violation of 18 U.S.C. § 924(c), carrying and possession of a firearm in furtherance of the crimes of violence alleged in Counts V and VI.

Defendant Darnyl Parker is individually charged with obtaining $1,000, on November 17, 2000, from a confidential source, whom Defendant believed to be a drug dealer, by extortion, including under color of official right, in violation of 18 U.S.C. §§ 1951 and 2 (Count VIII). Parker is also charged with obtaining, on January 5, 2000, $1,000 from the confidential source, by extortion, including under color of official right, in violation of 18 U.S.C. §§ 1951 and 2. Parker is further charged, in Count X, with conducting and attempting to conduct, a financial transaction involving the transfer and delivery of $2,500, represented to be proceeds of an unlawful narcotics transaction prohibited by 21 U.S.C. § 841(a)(1), in violation of 18 U.S.C. §§ 1956(a)(3)(A) and 2.

In Count XI, the Indictment charges Defendants Darnyl Parker, William Parker, and Reno Sayles with conspiracy to possess with intent to distribute cocaine, on November 2, 1999, in violation of 21 U.S.C. § 846.

Finally, Defendant Ferby is charged, in Count XII, with obtaining information from a government agency, through unauthorized access to a computer, for unlawful purposes and private gain, as alleged in Counts I, II, and III, in violation of 18 U.S.C. §§ 1030(a)(2)(B), 1030(c)(2)(B) and 2.

On August 28, 2000, Defendants filed a motion for a bill of particulars and discovery. (Doc. # 42). An Amended Bill of Particulars was filed by the Government on September 13, 2000 (Doc. # 48). By Decision and Order ("the D & O") dated November 3, 2000 (Doc. # 54), the motion was granted in part, denied in part, and dismissed as moot in part. Defendants subsequently filed objections. On February 27, 2001, District Judge Arcara rejected Defendants' objections and affirmed the D & O (Doc. # 81).

Defendants' Joint Memorandum of Law was filed December 27, 2000 (Doc. # 67); Defendants' Amended Joint Memorandum of Law was filed December 29, 2000 (Doc. # 67) ("Defendants' Memorandum"). The Government's Response to Defendants' Motions was filed on January 10, 2001 (Doc. # 70); the Government's Amended Response was filed on January 23, 2001 (Doc. # 72) ("Government's Response"). Defendants' Reply Memorandum of Law was filed January 23, 2001 (Doc. # 71) ("Defendants' Reply"). Oral argument was conducted March 15, 2001.2

FACTS3

Defendants Darnyl Parker, Rodriguez, and Hill are police officers employed by the City of Buffalo Police Department, a law enforcement agency operating under the laws of the State of New York, and are alleged during the relevant time periods, to have been assigned as detectives to the Department's Narcotics Unit. Indictment Introduction ¶¶ 1-2. Defendant Ferby is an agent employed by the United States Drug Enforcement Agency ("DEA") and, during the relevant...

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