United States District Court, W.D. New York
June 20, 2005.
UNITED STATES OF AMERICA,
FRANKLIN GAYLE, Defendant.
The opinion of the court was delivered by: RICHARD ARCARA, District Judge
This case was referred to Magistrate Judge Hugh B. Scott,
pursuant to 28 U.S.C. § 636(b)(1)(A), on July 20, 2004. On
September 10, 2004, defendant filed a motion to: (1) suppress
evidence seized at 2005 LaSalle Avenue and 1308 Ashland Avenue,
Niagara Falls, New York; (2) suppress certain statements he made
to law enforcement officers; and (3) dismiss the indictment on
vagueness grounds. On December 6, 2004, Magistrate Judge Scott
filed a Report and Recommendation, recommending that: (1)
defendant's motion to suppress be granted as to evidence seized
at 1308 Ashland Avenue; (2) defendant's motion to suppress be
denied as to evidence seized at 2005 LaSalle Avenue; and (3)
defendant's motion to dismiss be denied. The Magistrate Judge
also ordered a hearing on defendant's motion to suppress
statements. On March 7, 2005, Magistrate Judge Scott issued
another Report and Recommendation, recommending that defendant's motion to
suppress statements be denied.
Defendant filed objections to the Report and Recommendations on
March 17, 2005. On May 16, 2005, the government filed a response
to defendant's objections, along with its own objections. Oral
argument on the objections was held on May 23, 2005.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de
novo determination of those portions of the Report and
Recommendations to which objections have been made. Upon a de
novo review of the Report and Recommendations, and after
reviewing the submissions and hearing argument from the parties,
the Court adopts the proposed findings of the Report and Recommendations.
With regard to the government's objections, the Court further
finds that they are untimely. Pursuant to 28 U.S.C. § 636(b)(1),
Rule 72(b) of the Federal Rules of Civil Procedure and Rule
58.2(a)(3) of the Local Rules of Criminal Procedure, as well as
Magistrate Judge Scott's Report and Recommendation itself, the
government was required to file objections to the Report and
Recommendation within ten (10) days of receipt of a copy of the
Report and Recommendation. The government's objections were not
filed until May 16, 2005, long after the ten-day period had expired. In addition, the Court notes that the government never provided
the Magistrate Judge with copies of the search warrant and search
warrant affidavit for 1308 Ashland Avenue. It is clear from the
Report and Recommendation that as a result of this omission, the
Magistrate Judge mistakenly believed that there was only one
search warrant, the search warrant for 2005 LaSalle Avenue. The
government never moved for reconsideration before the Magistrate
Judge nor did it move before this Court to expand the record to
include the search warrant and search warrant affidavit for 1308
Ashland Avenue. Thus, the government's objections must be denied
on these grounds as well.
In the future, whenever the validity of a search warrant is at
issue, the government shall file copies of the search warrant and
any supporting affidavits for the Court's consideration. The
government shall not depend on the defendant to do so.
Accordingly, for the reasons set forth in Magistrate Judge
Scott's Report and Recommendations and herein, the Court: (1)
grants defendant's motion to suppress evidence seized at 1308
Ashland Avenue; (2) denies defendant's motion to suppress
evidence seized at 2005 LaSalle Avenue; (3) denies defendant's
motion to dismiss; and (4) denies defendant's motion to suppress
statements. Counsel shall appear on June 24, 2005, at 9:00 a.m.,
for a meeting to set a date for trial. IT IS SO ORDERED.
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