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U.S. v. PARKER

April 19, 2001

UNITED STATES OF AMERICA,
V.
DARNYL PARKER, JOHN A. FERBY, DAVID RODRIGUEZ, ROBERT E. HILL, WILLIAM PARKER, DEFENDANTS.



The opinion of the court was delivered by: Arcara, United States District Judge

DECISION AND ORDER

This case was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1)(A), on April 7, 2000. On December 22, 2000, defendants filed a joint motion for dismissal, to strike surplusage and for suppression of evidence. On January 10, 2001, the government filed a response to the motion. Magistrate Judge Foschio heard oral argument on the motion on March 15, 2001.

On April 19, 2001, Magistrate Judge Foschio filed a Report and Recommendation, recommending that the defendants' joint motion to dismiss and for suppression of evidence be denied.

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 58.2(a)(2) of the Local Rules of Criminal Procedure for the United States District Court for the Western District of New York ("Local Rules of Criminal Procedure"), defendants were required to file any objections to the Magistrate Judge's Report and Recommendation by May 7, 2001. On May 3, 2001, defendants filed a motion for an extension of time to file objections. stating that they needed additional time to evaluate the 78-page Report and Recommendation. On May 4, 2001, the Court granted the motion and extended the time to file objections to June 4, 2001.

On June 4, 2001, defendants filed a second motion for extension of time. This time, defendants stated the need for the extension as follows:

While a draft of these objections has been prepared, this additional time is needed in order to circulate and finalize the objections. That process necessarily requires the coordination of efforts and incorporation of changes and revisions among counsel for five of the six defendants.

That same day, June 4, 2001, the Court granted defendants' motion and extended the time to file objections to June 8, 2001.

On Friday, June 8, 2001, at 4:27 p.m., defendants filed yet a third motion for extension of time. This time, defendants explained the need for the extension as follows:

While a draft of these objections has been prepared, this additional time is needed in order to circulate and finalize the objections. That process necessarily requires the coordination of efforts and incorporation of changes and revisions among counsel for five of the six defendants.

This is obviously the exact same reason given in their June 4th motion.

On Monday, June 11, 2001, before the Court had a chance to rule on or even consider the June 8th motion for an extension, defendants submitted their proposed objections. The objections are 93 pages long.*fn1 Along with the objections, defendants filed a motion for permission to exceed the 25-page limit for briefs contained in Rule 49.1(e) of the Local Rules of Criminal Procedure.

After careful consideration, the Court denies defendants' June 8th motion for extension of time. Defendants waited until the last minute to file their extension motion, clearly assuming that the Court would automatically grant the motion. However, the Court has granted defendants two previous extensions, and they have cited no new reason for a third extension. Defendants have already been given additional time to circulate and finalize their proposed objections. No satisfactory explanation is given as to why the time was insufficient. Absent a sufficient reason, this Court expects that its scheduling orders will be obeyed. Scheduling orders are not mere formalities that can be disregarded or treated cavalierly. Waiting until one-half hour before the close of business on the day the objections are due to file a motion for an extension of time demonstrates a lack diligence in trying to comply with the Court's scheduling orders.

Accordingly, because defendants' objections were not filed by June 8, 2001, they are untimely and the Court shall not consider them.*fn2

After carefully reviewing the Report and Recommendation, the record in this case, and the pleadings and materials submitted by the parties, and no objections having been timely filed, it is hereby

ORDERED, that pursuant to 28 U.S.C. § 636(b)(1)(A), and for the reasons set forth in Magistrate Judge Foschio's Report and Recommendation, the defendants' joint motion to dismiss and for suppression of evidence is denied. Trial in this case shall commence on July 17, 2001 at 9:30 a.m. A final pretrial conference shall be held on July 5, 2001 at 2:00 p.m.

IT IS SO ORDERED.

JURISDICTION

This matter was referred to the undersigned, pursuant to 28 U.S.C. § 636(b)(1)(A) and 636(b)(1)(B), on April 7, 2000 by Hon. Richard J. Arcara. The matter is presently before the court on Defendants' Joint Motion for Dismissal, to Strike Surplusage, and for Suppression of Evidence filed December 22, 2000 ("Defendants' Motion") (Doc. #66).*fn1

BACKGROUND

Count V of the Indictment charges Defendants Darnyl Parker, Ferby, Rodriguez, and Hill with conspiracy to commit robbery and extortion, including under color of official right, in violation of 18 U.S.C. § 1951. Count VI of the Indictment charges Defendants Darnyl Parker, Ferby, Rodriguez, and Hill with an attempted violation of 18 U.S.C. § 1951 and 2, by robbery and extortion, including under color of official right, on February 13, 2000, by the taking and obtaining of $36,442 from an undercover agent believed by Defendants to be a drug dealer. Count VII charges Darnyl Parker, Ferby, Rodriguez. and Hill with a violation of 18 U.S.C. § 924(c), carrying and possession of a firearm in furtherance of the crimes of violence alleged in Counts V and VI.

Defendant Darnyl Parker is individually charged with obtaining $1,000, on November 17, 2000, from a confidential source. whom Defendant believed to be a drug dealer. by extortion, including under color of official right, in violation of 18 U.S.C. § 1951 and 2 (Count VIII). Parker is also charged with obtaining, on January 5, 2000, $1,000 from the confidential source, by extortion, including under color of official right, in violation of 18 U.S.C. § 1951 and 2. Parker is further charged. in Count X, with conducting and attempting to conduct, a financial transaction involving the transfer and delivery of $2,500, represented to be proceeds of an unlawful narcotics transaction prohibited by 21 U.S.C. § 841(a)(1), in violation of 18 U.S.C. § 1956(a)(3)(A) and 2.

In Count XI, the indictment charges Defendants Darnyl Parker, William Parker, and Reno Sayles with conspiracy to possess with intent to distribute cocaine, on November 2, 1999, in violation of 21 U.S.C. § 846.

Finally, Defendant Ferby is charged, in Count XII, with obtaining information from a government agency, through unauthorized access to a computer, for unlawful purposes and private gain, as alleged in Counts I, II, and III, in violation of 18 U.S.C. § 1030(a)(2)(B), 1030(c)(2)(B) and 2.

On August 28, 2000, Defendants filed a motion for a bill of particulars and discovery. (Doc. #42). An Amended Bill of Particulars was filed by the Government on September 13, 2000 (Doc. #48). By Decision and Order ("the D & O") dated November 3, 2000 (Doc. #54), the motion was granted in part, denied in part, and dismissed as moot in part. Defendants subsequently filed objections. On February 27, 2001, District Judge Arcara rejected Defendants' objections and affirmed the D & O (Doc. #81).

Defendants' Joint Memorandum of Law was filed December 27, 2000 (Doc. # 67); Defendants' Amended Joint Memorandum of Law was filed December 29, 2000 (Doc. #67) ("Defendants' Memorandum"). The Government's Response to Defendants' Motions was filed on January 10, 2001 (Doc. #70); the Government's Amended Response was filed on January 23, 2001 (Doc. #72) ("Government's Response"). Defendants Reply Memorandum of Law was filed January 23, 2001 (Doc. #71) ("Defendants' Reply"). Oral argument was conducted March 15, 2001.*fn2

FACTS*fn3

Defendants Darnyl Parker, Rodriguez, and Hill are police officers employed by the City of Buffalo Police Department, a law enforcement agency operating under the laws of the State of New York, and are alleged during the relevant time periods, to have been assigned as detectives to the Department's Narcotics Unit. Indictment Introduction ¶¶ 1-2. Defendant Ferby is an agent employed by the United States Drug Enforcement Agency ("DEA") and, during the relevant periods as alleged in the Indictment, assigned to the same Buffalo Police Narcotics Unit as Parker, Rodriguez, and Hill. Id., ¶ 2.

The Indictment alleges that Defendants Darnyl Parker, Ferby, Rodriguez, and Hill, while acting as police officers under color of state law, engaged in a conspiracy to violate the constitutional rights of certain persons, including "Jamaican" drug dealers within the City of Buffalo, specifically the protections against unreasonable search and seizure and the right to due process of law. Indictment Count I ¶ 2. The conspiracy is alleged to have commenced no later than November 10, 1999 when Defendant Darnyl Parker met with a known drug trafficker, but who, unknown to Parker, was then also a confidential source ("CS-1") for the Federal Bureau of Investigation ("FBI"). Indictment Count I ¶ 4.

On November 2, 1999, at a meeting between Parker and CS-1 at Parker's residence, CS-1 gave Parker $2,500, representing part of the proceeds of Parker's earlier $5,000 stake in a prospective cocaine transaction, conducted by CS-1, to be reinvested for Parker's benefit and profit by CS-1 in a future cocaine transaction. Indictment Count X; Complaint, ¶ 13. During a meeting with CS-1 on November 10, 1999, Parker stated to CS-1 that Parker and others were interested in robbing "Jamaicans," apparently referring to illegal drug traffickers from that country, and asked CS-1 if he knew any such persons. Indictment Count I, ¶ 14. Parker pursued the subject with CS-1 at meetings with CS-1 on November 17 and November 23, 1999. Id., ¶¶ 6, 7.

At the November 17th meeting, CS-1 paid Parker $1,000 in government funds in return for sensitive law enforcement information provided by Parker to CS-1 and another person regarding local drug investigations. Complaint, ¶¶ 6, 15; Indictment Count VIII. Also, at the same meeting, Parker is alleged to have repeatedly requested CS-1 to sell some cocaine to Parker's son, William Parker, a co-defendant in Count XI. Indictment Count XI; Complaint, ¶ 15. During the November 17th meeting with CS-1, Parker also stated to CS-1 that he was interested in robbing the Jamaican drug traffickers, but had no interest in arresting them, and assured CS-1 he would be compensated for his assistance in Parker's robbery plan. Complaint, ¶ 15.

On January 5, 2000, during a meeting with Parker at his residence in Buffalo, CS-1 paid Parker another $1,000 in government funds for providing CS-1 with sensitive law enforcement information. Indictment Count IX; Amended Bill of Particulars No. 22; Complaint, ¶ 24.

After conducting surveillance on what they believed was the Jamaican drug dealer s stash house at 929 West Avenue in Buffalo on January 7, 2000, Defendants Darnyl Parker, Ferby, and Rodriguez while acting in their official capacity as Buffalo police officers, at about noontime, made a warrantless and unauthorized forcible entry into the apartment at the purported drug dealer's stash house intending to steal cash and property belonging to the dealer, during which entry they stole a gold watch and a gold ring which had been secretly placed there by investigators Indictment Count I, ¶ 17; Amended Bill of Particulars No. 13. Subsequently, on January 10, 2000, at approximately 9 a.m., in furtherance of the conspiracy, Ferby allegedly made a computer inquiry regarding reported criminal activity at the 929 West Avenue address through a federal government information data base using facilities at the local DEA office. Id., ¶ 20; Amended Bill of Particulars No. 29.

After an unsuccessful attempt by Defendants Parker and Hill to effect a further unlawful reentry into the West Avenue stash house, which took place on January 15, 2000, Parker met with CS-1 on January 24, 2000 at which time Parker requested CS-1 inform him when the "Jamaican" drug dealer would be in Buffalo so that Parker "can have [his] people ready." Indictment Count I, ¶¶ 25-27. Parker again met with CS-1 to ascertain when the drug dealer would arrive in Buffalo and was told by CS-1 that the drug dealer would be at a particular location in the City of Buffalo on February 13, 2000. Id., ¶¶ 29, 30.

On February 13, 2000, after surveillance of the alleged drug dealer, then unknown to Defendants to be an undercover agent with the Federal Bureau of Investigation ("FBI"), Kevin White ("Agent White"), Defendants Darnyl Parker, Ferby, Rodriguez, and Hill, acting in their official capacity as Buffalo police officers and believing Agent White to be the "Jamaican" drug dealer previously identified by CS-1, stopped, detained and searched Agent White, and his vehicle, eventually robbing Agent White of $36,442 in government funds which Defendants then believed to be proceeds of narcotics trafficking by White, posing as the Jamaican drug dealer previously described to Defendants by CS-1. Indictment, ¶ 33. Defendants' stop, search, and seizure of White, and the robbery took place early in the evening on February 13th in a public parking lot at the corner of Elmwood Avenue and Allen Street in Buffalo. Amended Bill of Particulars No. 13.

According to the Indictment, Defendants never officially reported the stop of Agent White nor the seizure of the money from White, nor did Defendants inventory the money, turn it in to the Buffalo Police Department as evidence, give White a receipt for the money taken from him, or arrest White as a narcotics trafficking suspect. Indictment Count I, ¶¶ 36, 39. Instead. Defendants converted the funds for their own purposes or those of another person. Id., ¶ 38. It is also alleged that when Defendants stopped and robbed White, the fact that they were armed facilitated their ability to threaten White, and to successfully complete the planned robbery. Id., ¶ 4.

The Defendants' burglary, and attempted break-in, at the West Avenue apartment were the subject of video and audio surveillance. Complaint, ¶¶ 26, 31. The stop, detention, search and seizure of money from Agent White on February 12, 2000 was also monitored by surveillance along with intercepts of Defendant Parker's cellular telephone conversations with his three co-conspirators. Complaint, ¶¶ 53, 54 n. 6, 63. Most of the conversations between Defendant Darnyl Parker and CS-1 were consensually recorded by the investigators. Id., ¶ 3.

For CS-1's assistance in setting up Defendants' scheme to rob the "Jamaican" drug dealer, Darnyl Parker allegedly gave CS-1, $7,000, on February 14, 2000, at a meeting at Parker's residence, as his share of the robbery proceeds. Indictment Count I, ¶ 35; Complaint, ¶ 65. At that time, Parker asked CS-1 to sell some cocaine to Parker's son, co-defendant William Parker, and CS-1 indicated he would contact Parker in the future to arrange for a cocaine distribution to William Parker. Indictment Count XI; Complaint, ¶ 65.

Allegedly, Darnyl Parker again met with CS-1 on, Tuesday, February 22, 2000 at which time CS-1 told Parker that William Parker should arrange to pay CS-1 some money toward the purchase of cocaine if William Parker still was interested. Indictment Count XI; Complaint, ¶ 68. Darnyl Parker told CS-1 to contact him that Friday to arrange for making the payment. Complaint, ¶ 68. Darnyl Parker eventually telephoned CS-1 on Monday, February 25, 2000, and, later that day, phoned Reno Sayles, a relative and co-defendant in Count XI, to contact Parker regarding arranging for the cocaine sale to William Parker. Indictment Count XI; Complaint, ¶¶ 69. 70. At about 3 p.m., Darnyl Parker, William Parker, Reno Sayles and CS-1 met at Darnyl Parker's residence at which time Darnyl Parker placed an order with CS-1 for one half of a kilogram of cocaine for Sayles and William Parker, and gave CS-1, $6,600, one-half of the total price, as an advance payment. Indictment Count XI; Complaint 73.

DISCUSSION

1. Defendants' Motion to Dismiss for Violation of Fed.R.Crim.P. 7(c)(1) and the Sixth Amendment.

Defendants move to dismiss Counts I, II, and IV-XI as insufficiently pleaded in violation of Fed.R.Crim.P. 7(c)(1) and constitutional requirements for federal indictments. Defendants' Motion ¶¶ 13-30 (Count I); Id., ¶ 36 (Count II); Id., ¶¶ 55-57 (Count IV); Id., ¶¶ 58-63, 65-69 (Count V); Id., ¶¶ 70-75 (Count VI); Id., ¶¶ 83-86 (Count VII); Id., ¶¶ 87-88 (Counts VIII & IX); Id., ¶¶ 97-98 (Count X); and Id., ¶ 101 (Count XI).

An indictment is facially valid and constitutionally sufficient if it contains the elements of the offense charged, fairly informs a defendant of the charges against which he must defend, and enables a defendant to plead double jeopardy in bar of further prosecution. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); United States v. Hernandez, 980 F.2d 868, 871 (2d Cir. 1992). Further, a federal indictment need only track the language of the statute which defines the charged offense and, if necessary to apprise the defendant of the nature of the accusation against him, state the time and place of the alleged offense in approximate terms. Russell v. United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Covino, 837 F.2d 65, 69 (2d Cir. 1988). Where an indictment tracks the statutory language, it should nevertheless provide "facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged." Hamling, supra, at 117-18, 94 S.Ct. 2887 (internal citation and quotation marks omitted).

The form of the indictment is governed by Fed.R.Crim.P. 7(c)(1) and requires that the indictment "be a plain, concise, and definite written statement of the essential facts constituting the offense charged." It is well settled that indictments which track the statutory language defining an offense are, as a general rule, sufficient under Rule 7(c) so long as its application to a particular defendant is clear. United States v. Upton, 856 F. Supp. 727, 739 (E.D.N.Y. 1994). An indictment which complies with Rule 7(c)(1) satisfies the Sixth Amendment's requirement that the charge inform the defendant of the "nature and cause of the accusation." Russell, supra, at 763-64, 82 S.Ct. 1038. Accord United States v. Walsh, 194 F.3d 37, 44 (2d Cir. 1999); Upton, supra at 738.

A fair reading of the challenged counts shows they all track the language of the statutes upon which they are based and fairly apprise Defendants of the essential facts of the alleged offenses, as well as the nature and circumstances of the charges, as required by Fed.R.Crim.P. 7(c)(1) and the Sixth Amendment.

A. Count I — Conspiracy to Violate Civil Rights.

Count I provides 41 paragraphs of specific facts upon which the alleged violation of 18 U.S.C. § 241 is based. As relevant, § 241 outlaws conspiracies "to injure, oppress, threaten, or intimidate any person in any state . . . in the free exercise or enjoyment of any right or privilege secured . . . by the constitution." In sum, Count I alleges Defendants agreed to violate the constitutional rights of supposed drug dealers. Count I further specifies Defendants acted with an intent to violate the Fourth Amendment right to be free of unreasonable searches and seizures, and the Fourteenth Amendment right to freedom from a deprivation under state law of liberty and property without due process. As such, the Count fairly tracks the language of § 241, and provides ample details of the way Defendants entered the conspiracy and acted in furtherance of it, and therefore fairly alleges the nature and circumstances of the offense charged. Count I is therefore not subject to dismissal upon the grounds asserted by Defendants.

B. Count II — Conspiracy to Steal Government Property.

This count alleges Defendants conspired to commit a theft of government property in violation of 18 U.S.C. § 641 and 371. As relevant, § 641 prohibits embezzlement. stealing, purloining, or knowing conversion of government property. Section 371 punishes any conspiracy to "commit any offense against the United States." Count II fairly tracks the language of both the statutes, and together with the re-allegation of paragraphs 4-41 of the Indictment with references to Count I, as the required overt acts, it details the Defendants' entry into the alleged scheme and the circumstances of Defendants' plan to steal property owned by the Government. Count II thus contains a plain statement of the facts underlying the charge, and adequately apprises Defendants of the nature and circumstances of the offense against them. As such, it is not subject to dismissal for insufficient pleading.

C. Count IV — Theft of Government Property.

Count IV alleges Defendants violated 18 U.S.C. § 641 by stealing and converting money taken from Agent White on February 13, 2000. The count fairly tracks § 641, the substance of which is stated above, and therefore is sufficient on its face.

D. Count V — Hobbs Act Conspiracy.

Count V charges Defendants conspired to obstruct, delay and affect interstate commerce by robbery, and extortion including claim of right in violation of the Hobbs Act, 18 U.S.C. § 1951. during the period November 10, 1999 through March 2, 2000 by taking money from a confidential source and a government undercover agent. As relevant, § 1951 states that any person who "in any way or degree obstructs, delays, or affects commerce . . . by robbery or extortion or attempts or conspires so to do" violates the statute. 18 U.S.C. § 1951(a). Extortion is defined to include "obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official ...


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