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UNITED STATES v. VEGA

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK


December 6, 1994

UNITED STATES OF AMERICA,
v.
JOSE ARCHEVAL VEGA, Defendant.

The opinion of the court was delivered by: RICHARD J. ARCARA

DECISION AND ORDER

 Hon. Richard J. Arcara

 United States District Judge

 This matter was referred to the Honorable Leslie G. Foschio, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1), on October 19, 1992. In an omnibus motion filed November 16, 1992, defendant Archeval Vega moved for, inter alia: (1) suppression of statements and tangible evidence; (2) discovery of any and all statistical information regarding the racial and ethnic identity of individuals stopped and/or arrested for narcotics related activities at Buffalo area transportation centers, statistical information regarding the racial and ethnic identity of individuals prosecuted for narcotics related offenses at the transportation centers, manuals, handbooks and other documents containing policies and practices of federal law enforcement personnel regarding traveler profiles and engaging travelers for consensual stops and searches, and documents and directives regarding Operation Conductor" and other similar drug interdiction efforts; and (3) a factfinding hearing to demonstrate a prima facie case that race was a determining factor in the decision to stop and engage the defendant at the time of his arrest. The government filed its response to the motion on November 30, 1992, acknowledging the necessity of an evidentiary hearing, but opposing the defendant's request for discovery and a factfinding hearing on the issue of race as a determining factor in the stop and questioning of travelers at transportation centers.

 Magistrate Judge Foschio conducted a suppression hearing on December 8, 1992 and January 15, 1993. On January 10, 1994, the government moved for disqualification of defendant Archeval Vega's attorney, the Federal Public Defender's Office. On February 1, 1994, Kimberly A. Schechter, Esq., attorney for co-defendant Jocelyn Ramirez, filed an affirmation joining in the government's motion. On February 17, 1994, Federal Public Defender Jonathan W. Feldman filed an affirmation in response to the government's motion for disqualification. By order dated July 8, 1994, Magistrate Judge Foschio granted the government's motion to disqualify the Federal Public Defender. Magistrate Judge Foschio subsequently, on August 1, 1994, assigned Jonathan Johnsen, Esq. to represent defendant Archeval Vega.

 In a Report and Recommendation dated August 31, 1994, Magistrate Judge Foschio recommended that defendant Archeval Vega's motion to suppress be denied. In a Report and Recommendation dated September 2, 1994, Magistrate Judge Foschio recommended that defendant Archeval Vega's motion for discovery and a factfinding hearing on the issue of race as a determining factor in the stop and questioning of travelers at transportation centers be denied.

 On September 21, 1994, defendant Archeval Vega filed objections to Magistrate Judge Foschio's Reports and Recommendations of August 31, 1994 and September 2, 1994. Defendant Archeval Vega also appealed the Magistrate Judge's July 8, 1994 disqualification order. On October 31, 1994, the government submitted its response to defendant Archeval Vega's objections to the Reports and Recommendations and the appeal of the disqualification order. On November 10, 1994, defendant Archeval Vega submitted reply memoranda in response to the government's submissions. Oral argument on defendant Archeval Vega's objections to the reports and recommendations, and his appeal of the disqualification order was heard by this Court on November 15, 1994.

 With regard to Magistrate Judge Foschio's disqualification decision dated July 8, 1994, this Court may reverse the Magistrate Judge only if his Order is "clearly erroneous or contrary to law." See 28 U.S.C. § 636(b)(1)(A).

 After reviewing the submissions of the parties and hearing argument from counsel, the Court finds that the Magistrate Judge's decision and order of July 8, 1994 was neither clearly erroneous nor contrary to law and must, therefore, be affirmed.

 Pursuant to 28 U.S.C. § 636(b)(1)(B), the Court must make a de novo determination of those portions of the August 31, 1994 Report and Recommendation, and the September 2, 1994 Report and Recommendation to which objections have been made. Upon a de novo review of both of those Reports and Recommendations, and the record in this case, and after reviewing the submissions of the parties and hearing argument from counsel, the Court adopts the proposed findings of both the August 31, 1994 Report and Recommendation and the September 2, 1994 Report and Recommendation.

 Accordingly, for the reasons set forth in Magistrate Judge Foschio's August 31, 1994 Report and Recommendation, and September 2, 1994 Report and Recommendation, defendant Archeval Vega's motion for suppression is denied and his motion for discovery and a factfinding hearing on the issue of race as a determining factor in the stop and questioning of travelers at transportation centers is also denied. Counsel is hereby directed to appear in this Court on December 9, 1994 at 9:00 a.m. for the purpose of setting a date for trial.

 IT IS SO ORDERED.

 HONORABLE RICHARD J. ARCARA

 UNITED STATES DISTRICT COURT

 Dated: December 6, 1994

19941206

© 1992-2004 VersusLaw Inc.



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