U.S. v. Pierce
| Decision Date | 22 September 2006 |
| Docket Number | No. 05-CR-173A.,05-CR-173A. |
| Citation | 493 F.Supp.2d 611 |
| Parties | UNITED STATES of America, v. Karen PIERCE a/k/a Karen Burns, a/k/a Momma-Love, Defendant. |
| Court | U.S. District Court — Western District of New York |
Terrance P. Flynn, United States Attorney, Joel L. Violanti, of Counsel, Buffalo, NY, for the Government.
John J. Molloy, Esq., West Seneca, NY, for Defendant Maurice Fisher.
Eoannou, Lana & D'Amico, Thomas J. Eoannou, of Counsel, Buffalo, NY, for Defendant Maurice Fisher.
Angelo Musitano, Esq., Niagara Falls, NY, for Defendant Emilio Galarza.
Karen A. Korkuc, Esq., Buffalo, NY, for Defendant Irving Mitchell.
John Patrick Pieri, Esq., Buffalo, NY, for Defendant Karen Pierce.
Matthew P. Pynn, P.C. Matthew P. Pynn, of Counsel, Lockport, NY, for Defendant Shauncey Galarza.
Michael J. Stachowski, Esq., Buffalo, NY, Attorney for Defendant Daniele Liddle.
Michael G. O'Rourke, Buffalo, NY, Esq., Attorney for Defendant Eugene Davis.
On March 2, 2006, defendant Karen Pierce filed a motion to suppress evidence seized pursuant to an unsigned search warrant executed at 204 Bird Avenue, Buffalo, New York. The case was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1)(A), on March 9, 2006. On June 16, 2006, Magistrate Judge Foschio filed a Report and Recommendation, recommending that defendant's motion to suppress be denied.
Defendant filed objections to the Report and Recommendation on July 10, 2006 and the government filed a response thereto. Oral argument on the objections was held on August 22, 2006.
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 argument from counsel, the Court adopts the proposed findings of the Report and Recommendation. In addition to the reasons cited by the Magistrate Judge, the Court also finds that the so-called "good faith" exception to the warrant requirement enunciated by the United States Supreme Court in United States v. Leon, 468 U.S. 897 (1984), applies in this case.
The Court further notes that the defendant contends that she should be afforded an evidentiary hearing on her motion. Defendant has failed, however, to make a showing that she could offer any evidence that would bring this case within the Second Circuit's formulation of circumstances making it appropriate to apply, the exclusionary rule to the infractions of Federal Rule of Criminal Procedure 41 at issue here. See United States v. Turner, 558 F.2d 46, 52 (2d Cir.1977); United States v. Burke, 517 F.2d 377, 386-87 (2d Cir.1975). It is clear that what happened here is that the Magistrate Judge intended to sign the warrant, but inadvertently did not. Thus, the Court finds that a hearing is unnecessary. See Turner, 558 F.2d at 53 (quoting Burke, 517 F.2d at 387).
Accordingly, for the reasons set forth in Magistrate Judge Foschio's Report and Recommendation and herein, defendant's motion to suppress is denied. The Court also adopts the remainder of Magistrate Judge Foschio's Report and Recommendation to which is there are no objections.1
All counsel in the case are ordered to appear on September 25, 2006 at 2:00 p.m. for a meeting to set a trial date.
IT IS SO ORDERED.
REPORT and RECOMMENDATION
This case was referred to the undersigned by the Hon. Richard J. Arcara on March 9, 2006 for all pretrial matters, including report and recommendation on dispositive motions. (Doc. No. 66). The matter is presently before the court for a report and recommendation on Defendants' Motions ("Defendants' Motions") seeking both dispositive and nondispositive relief,1 and on the Government's motion filed March 20, 2006 (Doc. No. 67) ("Government Response"), seeking reciprocal discovery.
Defendant Martellus Jones and seven others, including co-Defendants Maurice Fisher, Emilio Galarza, Irving Mitchell, Karen Pierce, Shauncey Galarza, Daniele Liddle and Eugene Davis, were indicted in a four count indictment on July 7, 2005, charging violations of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(B), 843(b), 846 and 848(a). (Doc. No. 1) ("the Indictment"). Specifically, Defendant Martellus Jones is alone charged in Count 1 of the Indictment with knowingly, willfully, intentionally and unlawfully engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848(a) ("Count 1" or. "the CCE Count"). Defendants Martellus Jones, Maurice Fisher, Emilio Galarza, Irving Mitchell, Karen Pierce, Shauncey Galarza, Daniele Liddle and Eugene Davis were charged with conspiracy to possess with intent to distribute, and to distribute, 50 grams or more of cocaine in violation of 21 U.S.C. § 846 ("Count 2" or "the Conspiracy Count"). Defendant Martellus Jones was alone charged with knowingly, intentionally and unlawfully possessing with intent to distribute and distribute 50 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A) ("Count 3"). Defendant Emilio Galarza was alone charged with knowingly, intentionally and unlawfully possessing with intent to distribute and distribute 5 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) ("Count 4").
Defendants' Motions include motions filed by Karen Pierce on March 2, 2006 (Doc. No. 61) ("Pieri Affirmation"), Martellus Jones on March 3, 2006 (Doc. No. 63) ("Molloy Affirmation"), Maurice Fisher on March 6, 2006 (Doc. No. 64) ("Eoannou Affirmation"), Shauncey Galarza on March 7, 2006 (Doc. No. 65) ("Pynn Affirmation"). The Government filed its Response to Omnibus Motion in opposition to Defendants' motions on March 20, 2006 (Doc. No. 67) ("Government Response"). At oral argument, conducted on April 4, 2006, the court granted Defendant Pierce 10 days to file a supplemental motion challenging the search warrant for 204 Bird Avenue, and ten days for the Government to respond.2 (Doc. No. 68). Subsequently, Defendant Pierce filed a motion to suppress (Doc. No. 69) ("Pieri Affirmation II") on April 10, 2006. The Government filed the Government's Response to Defendant's Motion to Suppress (Doc. No. 70) ("Government Response to Motion to Suppress") on April 20, 2006.
Defendants' Motions include requests for suppression of Title III evidence, suppression of evidence obtained pursuant to various search warrants issued on or about July 11, 2005, severance, an audibility hearing and disclosure of informant identities. As indicated, background, supra, at 4 n. 2, Defendants submitted certain requests for non-dispositive relief in their respective motion papers which were determined at oral argument.
At oral argument, the court directed all counsel to address any remaining issues pursuant to Fed.R.Crim.P. 16 ("Rule 16") not previously resolved in a prior court proceeding or as a result of the extensive discovery voluntarily provided by the Government. (Due. No. 68). The court DISMISSED (1) all requests for information pursuant to Rule 16 as to Defendants Pierce and Galarza; (2) requests for a Bill of Particulars from Defendants Pierce, Fisher and Jones; and (3) Defendants' requests for Brady and Giglio material, as the Government represented it understood its obligations under Brady and stated it will offer Giglio material in a timely fashion. Id. The court GRANTED (1) Defendants' request for Fed.R.Evid. 404b ("Rule 404(b)") material, directing the Government to provide Rule 404(b) information to Defendants two weeks before trial unless otherwise directed by the District Judge; (2) Defendants' requests for testifying expert information pursuant to Fed.R.Evid. 702 ("Rule 702"), requiring the Government to provide a summary of testifying experts' reports and resumes to each Defendant not later than 30 days prior to trial; and (3) GRANTED the Government's motion for reciprocal discovery, requiring Defendants to provide such discovery to the Government no later than May 4, 2006. The court DENIED the request for Jencks Act material made by Defendants. Fisher and Pierce, noting that it is customary that the pretrial order of the District Judge include the pretrial disclosure of witness statements pursuant to 18 U.S.C. § 3500 and stating the court has no authority to require such disclosure under United States v. Ullah, 2005 WL 629487, * 7 (W.D.N.Y.2005) (citing United States v. Scotti, 47 F.3d 1237, 1249-50 (2d Cir.1995)) (denying pretrial production of Jencks Act material and citing United States v. Sebastian, 497 F.2d 1267, 1269-70 (2d Cir.1974) ()). Also, Defendants Fisher and Galarza withdrew their requests for severance without prejudice to renew at trial before the Hon. Richard J. Arcara.
The charges in the Indictment arise from an investigation conducted by the Drug Enforcement Agency ("DEA") and local law enforcement, including the. Buffalo Police Department ("BPD") of an alleged cocaine possession and distribution conspiracy. Defendants Martellus Jones, Maurice Fisher, Emilio Galarza, Irving Mitchell, Karen Pierce, Shauncey Galarza, Daniele Liddle and Eugene Davis are alleged coconspirators in a drug trafficking conspiracy operating in and around Buffalo, New York.4 According to the Government, Defendant Jones is the alleged leader of the narcotics organization known as the "TALIBAN." During the course of the investigation, law enforcement officers learned Defendant Jones used telephones subscribed to his wife, Shauncey Galarza at 26 Wick Street in Buffalo, (716) 888-0930, and a phone subscribed to by his mother, Karen Burns at 593 Grant Street in Buffalo, (716) 228-4556, to arrange for the sale of narcotics. "
In September 2004, a confidential source ("CS-1") provided DEA Agents...
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