United States v. Fernandes

Decision Date25 September 2014
Docket NumberNo. 14–CR–06043 EAW.,14–CR–06043 EAW.
Citation50 F.Supp.3d 398
PartiesUNITED STATES of America, v. Jonathan FERNANDES, Defendant.
CourtU.S. District Court — Western District of New York

Jennifer M. Noto, U.S. Attorney's Office, Rochester, NY, for United States of America.

Robert G. Smith, Federal Public Defender, Rochester, NY, for Defendant.




Defendant Jonathan Fernandes (Defendant) is charged with a 13–count indictment alleging numerous drug and drug-related crimes in connection with his alleged manufacture and distribution of methamphetamine. (Dkt. 10). By text order dated April 4, 2014, this case was referred to United States Magistrate Judge Jonathan W. Feldman, pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B). (Dkt. 11).

Count one of the indictment alleges manufacture of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) ; count two alleges possession with intent to distribute and distribution of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) ; counts three, seven, and eleven allege maintaining a drug related premises, in violation of 21 U.S.C. § 856(a)(1) ; counts four, eight, and twelve allege possession of firearms in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) ; count five alleges possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) ; counts six and ten allege possession of materials used to manufacture a controlled substance, in violation of 21 U.S.C. §§ 843(a)(6) and (d)(2) ; count nine alleges possession of a listed chemical with intent to manufacture a controlled substance, in violation of 21 U.S.C. § 841(c)(1) ; and count thirteen alleges possession of a controlled substance, in violation of 21 U.S.C. § 844(a). (Dkt. 10).

After reviewing the parties' original pretrial motion submissions (Dkt. 23 and 24), Judge Feldman's Report and Recommendation (Dkt. 26), and Defendant's objection to the Report and Recommendation (Dkt. 28), the Court adopts the Report and Recommendation in its entirety.


On July 11, 2014, Defendant filed a pretrial motion, requesting the following forms of relief: (1) production of a bill of particulars; (2) suppression of search warrants and identification of witnesses; (3) discovery and inspection; (4) disclosure of witness statements; (5) dismissal of counts four and eight of the indictment; (6) release of Brady materials; (7) reciprocal discovery; (8) preservation of rough notes; (9) disclosure under Fed.R.Evid. 609 ; (10) disclosure under Fed.R.Evid. 608 ; (11) and disclosure under Fed.R.Evid. 404(b). (Dkt. 23).

After receiving submissions from the parties, on August 7, 2014, Judge Feldman heard oral argument as to Defendant's omnibus motions. (Dkt. 26 at 1). Judge Feldman addressed and decided Defendant's motions to dismiss counts four and eight of the indictment, to suppress search warrants and identification of witnesses, for a bill of particulars, for discovery and inspection, and for disclosure of witness statements. (Id. ). As to the dispositive motions filed by Defendant, Judge Feldman recommended denial of Defendant's motion to dismiss counts four and eight of the indictment, denial of Defendant's motion to suppress search warrants, and denial of Defendant's motion to suppress identification testimony. (Id. ).

On August 12, 2014, Judge Feldman issued a written Report and Recommendation confirming the oral rulings made as to Defendant's motions seeking dispositive relief. (Dkt. 26). On August 26, 2014, Defendant filed an objection to the portion of Judge Feldman's Report and Recommendation denying Defendant's request for a Franks hearing so as to challenge the validity of statements made in one or more of the warrant applications to obtain a search warrant for Defendant's residence. (Dkt. 28).

I. Legal Standard

A district court reviews any specific objections to a report and recommendation under a de novo standard. Fed.R.Crim.P. 59(b)(3) ; see also 28 U.S.C. § 636(b)(1)(C) (“A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997) (The Court must make a de novo determination to the extent that a party makes specific objections to a magistrate's findings.). To trigger the de novo review standard, objections to a report ‘must be specific and clearly aimed at particular findings in the magistrate judge's proposal.’ McDonaugh v. Astrue, 672 F.Supp.2d 542, 547 (S.D.N.Y.2009) (quoting Molefe v. KLM Royal Dutch Airlines, 602 F.Supp.2d 485, 487 (S.D.N.Y.2009) ). Following review of the report and recommendation, the district judge “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C).

The Court is not required to review de novo those portions of a report and recommendation to which objections were not filed. Male Juvenile, 121 F.3d at 38 (We have adopted the rule that failure to object timely to a magistrate judge's report may operate as a waiver of any further judicial review of the decision, as long as the parties receive clear notice of the consequences of their failure to object.”).

II. Defendant is Not Entitled to a Franks Hearing

Defendant objects to the portion of Judge Feldman's Report and Recommendation denying his request for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). (Dkt. 28 at 1–2). Specifically, Defendant argues that he is entitled to a Franks hearing because there is evidence that one or more of the search warrant applications submitted to obtain a search warrant for his residence contained the false statement that one of the Government's confidential informants, Samuel Hackett, wore a wire and purchased methamphetamine from Defendant. (Id. at 3). In support of this contention, Defendant offers what has been referred to as the “guest check” evidence, and is attached as Exhibit E to Defendant's original motion. (Dkt. 23–1 at 84–85). The guest check evidence is a restaurant receipt containing a hand-written note, allegedly by Mr. Hackett, that he “never wore a wire on John Fernandez.” The guest check is dated June 20, 2014, and purports to be signed by Mr. Hackett. The guest check also contains two other statements, “No threts Just Questions” and “never bought meth ever”. (Id. at 85). It also contains the signature of another individual. (Id. ).

Judge Feldman found that the guest check evidence was “not an affidavit and is difficult to decipher,” and “clearly insufficient to meet the defendant's burden under Franks of making a preliminary showing that a material false statement was included in the warrant affidavit.” (Dkt. 26 at 3). Judge Feldman denied the motion without prejudice, noting that Defendant was free to continue his investigation into the guest check evidence and supplement the same at some point in the future, with a more complete affidavit. (Id. ).

Pursuant to Franks v. Delaware, “where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request.” 438 U.S. at 155–56, 98 S.Ct. 2674. To be entitled to a Franks hearing, the defendant's attack on material contained in the search warrant:

must be more than conclusory and must be supported by more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactory explained. Allegations of negligence or innocent mistake are insufficient.

Id. at 171, 98 S.Ct. 2674. Therefore, [t]o invoke the Franks rule, a defendant is required to show: (1) ‘that there were intentional and material misrepresentations or omissions' in the warrant affidavit, and (2) that the ‘alleged falsehoods or omissions were necessary to the ... probable cause finding.’ United States v. Mandell, 752 F.3d 544, 552 (2d Cir.2014) (quoting United States v. Awadallah, 349 F.3d 42, 65 (2d Cir.2003) ). Notably, “there is ... a presumption of validity with respect to the affidavit supporting the search warrant.” Franks, 438 U.S. at 171, 98 S.Ct. 2674.

In the event a defendant is successful in obtaining a Franks hearing, [i]n order to challenge successfully a search warrant based on an attack on the allegations in a supporting affidavit, a defendant must show by a preponderance of the evidence that the affidavit contained false statements that were material on the issue of probable cause.” United States v. Wapnick, 60 F.3d 948, 955 (2d Cir.1995) (internal quotations and citation omitted); see also United States v. Lahey, 967 F.Supp.2d 698, 709 (S.D.N.Y.2013) (“To require suppression, a movant must demonstrate, by a preponderance of the evidence, both the affiant's intent to mislead the issuing judge and the materiality of the affiant's falsehoods or omissions.”) (emphasis in original).

In his objections filed to Judge Feldman's Report and Recommendation, Defendant argues that the guest check evidence “can be read to say that Samuel Hackett never wore a wire on Jonathan Fernandes and never bought methamphetamine, ever. In the search warrant application, Samuel Hackett, according to the government CI# 1, wore a wire and purchased methamphetamine...

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