United States v. Bushay

• Decision Date: 12 March 2012
• Docket Number: Criminal Action File No. 1:10–cv–521–1–TCB–AJB.
• Citation: 859 F.Supp.2d 1335
• Parties: UNITED STATES of America, v. Jerome BUSHAY, Defendant.
• Court: U.S. District Court — Northern District of Georgia

859 F.Supp.2d 1335

UNITED STATES of America,

v.Jerome BUSHAY, Defendant.

Criminal Action File No. 1:10–cv–521–1–TCB–AJB.

United States District Court,

N.D. Georgia,

Atlanta Division.

March 12, 2012.

Cassandra Juliet Schansman, Dahil Dueno Goss, Jeffrey W. Davis, L. Skye Davis, Mary Frances Blazek Kruger, Office of United States Attorney, Atlanta, GA, for United States of America.

L. Burton Finlayson, Office of L. Burton Finlayson, Atlanta, GA, for Defendant.

ORDER

TIMOTHY C. BATTEN, SR., District Judge.

This matter is before the Court on Defendant Jerome Bushay's objections [489] to Magistrate Judge Baverman's Report and Recommendation (the “R & R”) [476], which recommends that the Court deny Bushay's motion to suppress statements [155]; motion to suppress evidence [156]; motion to suppress search and seizure re: 6746 Grey Rock Way [279 & 327]; motion to suppress search and seizure re: 943 Peachtree Apt. 707 [278 & 326]; and motion to suppress search and seizure re: hotel room [280]. The R & R further recommends that Bushay's motion to suppress search and seizure re: traffic stop [282] be granted as moot and defers his motion to sever defendant re: Bruton problem [283] to this Court for determination.

I. Background

On December 14, 2010, the grand jury returned an indictment against Bushay and his co-Defendants Otis Henry, Christopher Dixon, Mark Tomlinson, Rashaun Hood, Curtis Hernandez, Nigel Edwards, Jermaine Campbell, Ricardo Duncan, Dave Grant, Christopher Williams, Damien Aarons and Conrad Harvey. The indictment charges all Defendants as part of a conspiracy to commit drug-related offenses and charges them with the underlying substantive offenses of the conspiracy, which include two counts of possession with the intent to distribute marijuana, three counts of possession with the intent to distribute methylenedioxymethamphetamine (MDMA), and two counts of possession of a firearm in furtherance of a drug trafficking crime.

Bushay filed the motions currently before the Court seeking to suppress the seizure of a firearm from a hotel room in Tampa, Florida; his statements made to police following his arrest in Florida; evidence gained through the searches of two residences in Georgia; and evidence gained through a traffic stop. Additionally, Bushay seeks a severance pursuant to Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), from any of his co-Defendants who made statements implicating him.

On September 22, 2011, Magistrate Judge Baverman held an evidentiary hearing on Bushay's motions to suppress evidence from the search of the Tampa hotel room and his post-arrest statements.

On February 7, 2012, Judge Baverman issued an R & R setting forth his findings of fact from the evidentiary hearing and recommending that all of Bushay's motions to suppress, except his motion to suppress evidence from an October 4, 2010 traffic stop in Lamar County, Georgia, be denied. As to the traffic stop, Judge Baverman recommended that this motion be granted as moot because the Government announced at the evidentiary hearing that it did not intend to introduce any evidence from the traffic stop at trial. Bushay timely filed objections to the R & R challenging Judge Baverman's findings of fact and conclusions of law made in response to his motions to suppress.

II. AnalysisA. Legal Standard

A district judge has a duty to conduct a “careful and complete” review of a magistrate judge's R & R. Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir.1982) (quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir.1982)).¹ This review may take different forms, however, depending on whether there are objections to the R & R. The district judge must “make a de novo determination of those portions of the [R & R] to which objection is made.” 28 U.S.C. § 636(b)(1)(C). In contrast, those portions of the R & R to which no objection is made need only be reviewed for clear error. Macort v. Prem, Inc., 208 Fed.Appx. 781, 784 (11th Cir.2006).²

“Parties filing objections must specifically identify those findings objected to. Frivolous, conclusive or general objections need not be considered by the district court.” Nettles, 677 F.2d at 410 n. 8. “This rule facilitates the opportunity for district judges to spend more time on matters actually contested and produces a result compatible with the purposes of the Magistrates Act.” Id. at 410.

The district judge also has discretion to decline to consider arguments that were not raised before the magistrate judge. Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir.2009). Indeed, a contrary rule “would effectively nullify the magistrate judge's consideration of the matter and would not help to relieve the workload of the district court.” Id. (quoting United States v. Howell, 231 F.3d 615, 622 (9th Cir.2000)).

After conducting a complete and careful review of the R & R, the district judge may accept, reject or modify the magistrate judge's findings and recommendations. 28 U.S.C. § 636(b)(1)(C); Williams, 681 F.2d at 732. The district judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1)(C).

The Court has conducted a careful, de novo review of the report and recommendation and Bushay's objections thereto. Having done so, the Court finds that Magistrate Judge Baverman's factual and legal conclusions were correct and that Bushay's objections have no merit.

B. The Tampa Hotel Search, the Agents' Seizure of the Gun, and Bushay's Post–Arrest Statements

1. Judge Baverman's Findings of Fact

Based on the evidence presented by the parties at the September 22 hearing, Judge Baverman made the following findings of fact regarding the search of the Tampa hotel room, the seizure of a gun from that room, and Bushay's post-arrest statements to police.

On December 15, 2010, Drug Enforcement Administration (“DEA”) Atlanta Task Force Officer (“TFO”) T.K. Gordon called TFO Jeff McConaughey of the Pinellas County, Florida Sheriff's Office to advise him that several individuals who had been indicted in Atlanta, and for whom arrest warrants had been issued, were in the Tampa area. At the time of the call, McConaughey had been conducting an investigation of one of Bushay's co-Defendants, Christopher Williams. McConaughey assembled a team of DEA agents and TFOs and went to an area northeast of Tampa near the fairgrounds, where there are several hotels. The agents did not know which hotel the individuals were staying in, but had learned through Title III wire intercepts that the subjects were in room 308 of one of the hotels in that area. Agents then observed Bushay and Williams leaving the Fairfield Inn in a van and followed them to an IHOP restaurant near downtown Tampa.

Agents continued to surveille the suspects while they were inside the IHOP. When the men went to leave the restaurant, agents arrested them. In searching Bushay, McConaughey found two plastic credit-card-type hotel room keys. Agents placed Bushay in the back of a marked police car, but did not advise him of his Miranda rights at that time because they did not intend to question him at the scene.

Once at the DEA office, McConaughey took Bushay to the processing and interviewroom. At that time, McConaughey was not armed. McConaughey did not threaten Bushay or make him any promises. McConaughey read Bushay his rights from a DEA Form 13A, T21, which provides,

Before we ask you any questions, you must understand that you have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning, if you wish. Do you understand? Are you willing to answer some questions?

Bushay replied, “Yes, I'll talk to you.” McConaughey did not present Bushay with a written waiver form. McConaughey began questioning Bushay and asked him whether he had left any property at the hotel. Bushay responded that he had left a gun in the hotel nightstand.

DEA Task Force Agents Nicholas Marolda and Dexter McGee went to the Fairfield Inn with the plastic keys that agent McConaughey had found on Bushay in order to retrieve the gun. They knocked on the door of room 308, and after a few seconds Keisean Scarlett opened the door. When Marolda identified himself as a law-enforcement agent, Scarlett tried to shut the door; however, Marolda stuck his foot in the door. Scarlett turned around and moved towards the bed. The agents drew their weapons but did not enter the room. Instead, they verbally commanded Scarlett to return to the door while showing his hands and then to get on the floor. Scarlett complied, and the agents handcuffed him.

Scarlett told the agents, and they observed, that another person, subsequently identified as Chadwick Williams, was in the room sleeping. The agents told Williams to show his hands, and after several requests he complied and the agents secured him. The agents then placed Scarlett and Williams in the hallway inside the hotel room and conducted a sweep of the room for the presence of any other persons.

After sweeping the room, the agents brought Scarlett and Williams back into the room and seated one on a chair and the other on a bed. Marolda explained that the agents were there to search the room for a firearm. Marolda asked Scarlett if there was a gun in the room, and he replied that it was in the nightstand between the beds. Scarlett told Marolda that he was going to call “Jerome” to ask why he left the gun in the room. Marolda seized the firearm from the nightstand, and gave it to McGee, who cleared it and secured it.

At approximately 12:35 p.m., Scarlett and Williams signed a consent-to-search form for the room, but Marolda could not say whether the form was signed before or after the firearm was seized. He also testified that he “had...