United States v. Elder
| Decision Date | 26 November 2019 |
| Docket Number | 01-CR-182-A,02-CR-082-A |
| Parties | UNITED STATES OF AMERICA, v. MICHAEL ELDER, Defendant. |
| Court | U.S. District Court — Western District of New York |
On September 24, 2018, the defendant, Michael Elder, was charged in an Amended Petition for Offender Under Supervision (the "Petition") pursuant to 18 U.S.C. § 3583(e) with six violations of conditions of supervised release. Based upon evidence admitted during a three-and-a-half-day jury trial of related criminal charges and a Stipulation, the Court finds, pursuant to Fed. R. Crim. P. 32.1, that defendant Elder is guilty of the violations alleged in Charges 2, 4, 5 and 6 of the Petition and not guilty of the violations alleged in Charges 1 and 3.
On June 24, 2005, defendant Michael Elder was sentenced in two cases docketed at 01-CR-182-A and 02-CR-082-A to an aggregate of 195 months imprisonment1 to be followed by an aggregate of five years of supervised release, withrestitution to a bank robbery victim of $17,025. An identical Judgment in a Criminal Case reflecting the sentences was filed in both cases on July 15, 2005. Doc. Nos. 68 and 114, respectively.
At the time of these sentencings, defendant Elder was 24 years of age. His criminal record included a felony conviction for Attempted Armed Robbery and a Disorderly Conduct violation. He also had prior arrests on charges of armed robbery, burglary, and possession of a controlled substance, but no other criminal convictions.
Defendant Elder's June 24, 2005 sentences included, as conditions of supervised release, the following mandatory condition, among others:
The defendant shall not commit another federal, state or local crime.
Dkt. Nos. 68, p. 3 and 114, p. 3. The conditions included the following standard conditions:
Id. Finally, the defendant's sentence also included the following special condition, among others:
The defendant shall submit to a search of his person, property, vehicle under his control and permit confiscation of any evidence or contraband discovered.
Id. at 4. Upon completion of defendant's term of imprisonment, his five-year term of supervised release began on July 7, 2016.
On November 3, 2016, less than four months after defendant Elder's term of supervised release began, and after a series of anonymous tips to law enforcement that the defendant was selling heroin and fentanyl from his residence at 143 Edgewood Drive, Tonawanda, New York, U.S. Probation Officers and other law enforcement officers searched the residence. The officers found and seized suspected cocaine base and fentanyl, hydraulic presses and other drug-trafficking paraphernalia, and approximately $23,000 of U.S. currency.
On January 5, 2017, a Grand Jury returned an Indictment against defendant Elder charging him with one count of possession with intent to distribute more than 28 grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B), one count of possession with intent to distribute fentanyl and fentanyl-related substances, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)©, and one count of maintaining drug-involved premises in violation of 21 U.S.C. § 856(a)(1). The charges arose primarily from evidence found and seized during the November 3, 2016 search of the defendant's residence. Trial of the three-count Indictment began on July 23, 2018, and concluded after the three guilty verdicts were returned on July 25, 2018.
The Amended Petition for Offender Under Supervision charged defendant Elder with the following six violations of conditions of his supervised release:
Dkt. Nos. 85 and 157, respectively.
Defendant Elder has incorporated by reference arguments he made in his related criminal case that items seized during the November 3, 2016 search of his residence, and his responses to questioning, must be suppressed. Dkt. No. 94, p. 4. The defendant argued the search was not based upon reasonable suspicion and therefore violated the Fourth Amendment, and that his statements to law enforcement and U.S. Probation Officers were tainted by the illegal search. The Court adopts its prior rulings concluding that there was no violation of the Fourth Amendment and rejecting those arguments at Docket No. 37 in the related case at United States v. Elder, 17-CR-05-A, 2018 WL 833132 (W.D.N.Y. Feb. 13, 2018). Further, the Courtfinds that nothing in this case justifies application of the exclusionary rule, even if there had been a Fourth Amendment violation. See United States v. Phillips, 914 F.3d 557, 559-60 (7th Cir. 2019) (); United States v. Campbell, 342 F. Supp. 3d 375, 386-87 (W.D.N.Y. 2018)2.
The Court presided over defendant Elder's trial on the three-Count Indictment at 17-CR-05-A. The jury heard that U.S. Probation Officers and Drug Enforcement Administration Agents recovered approximately 92 grams of cocaine base, significant quantities of fentanyl, butyryl fentanyl, and furanyl fentanyl, along with a scale from below a cabinet baseboard in the kitchen of the defendant's residence. The jury also heard that law enforcement seized packaging materials consistent with drug sales, dust masks, a vacuum sealer and diluents commonly used for the sale of narcotics from the kitchen. Packaging materials of the sort used for heroin were seized from a crawlspace on the second floor. Three hydraulic presses used for making powder bricks were seized from the basement. More than $20,000 cash from was seized from the defendant's bedroom. Four cell phones were recovered from a toilet seat next to where defendant had exited the shower just before the search began.
Documents seized during the search tended to show that defendant Elder wasanxious to avoid U.S. Probation Officer's supervision, and that he planned to do so through an ambitious plan for a new business that would require a substantial amount of money to start. But the jury heard evidence that the defendant's monthly reported income to U.S. Probation and expenditures did not comport even with the amount of cash law seized from the defendant's bedroom. In addition, the jury heard testimony that the defendant, just months after his release from custody to supervision, purchased a newer model Jeep SUV with U.S. Probation Officer James Dyckman's approval, but not before Officer Dyckman denied the defendant's request to purchase an even more expensive Cadillac Escalade SUV.
The jury also heard testimony from defendant Elder and his mother. The defendant admitted to possessing most of the items seized by law enforcement during the November 3, 2016 search, with the exception of the controlled substances, the scale, the hydraulic presses, and the heroin packaging materials. The defendant and his mother gave innocent, exculpatory explanations for the thousands of baggies he possessed, the security cameras inside and outside the house, the dust masks in the kitchen, the approximately $20,000 of currency, and the four cell phones that were found on the toilet seat next to the shower. In the context of the trial as a whole, it was clear that the defendant gave false testimony to try to avoid another federal criminal conviction.
While being cross-examined, defendant Elder admitted that he did not accurately fill out his monthly probation reports and that he concealed from U.S. Probation how many phones he possessed and who he was living with at...
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