The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
By Order of Hon. Michael A. Telesca, United States District Judge, dated October 4, 2005, all pretrial matters in the above-captioned case were referred to Magistrate Judge Marian W. Payson pursuant to 28 U.S.C. §§ 636(b)(1)(A)-(B). (Docket # 34). On August 28, 2006 by Order of Judge Telesca the case was transferred to the undersigned. The matter is now before this Court on defendant's objections, filed on September 8, 2006, (Docket # 100) to the combined Decision and Order ("D & O") and Report and Recommendation ("R & R") filed by Judge Payson on July 31, 2006 (Docket # 93).
The background of this case leading to the present application before this Court was very accurately and succinctly summarized by Magistrate Judge Payson in her July 31, 2006 D & O and R & R:
Defendant Terrance Sykes (hereinafter "Sykes") is charged in a three-count indictment. The first count charges Sykes with possessing with intent to distribute fifty grams or more of cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). The second count charges Sykes with possessing in excess of five grams of cocaine base, in violation of 21 U.S.C. § 844(a). The final count charges Sykes with possessing a firearm in furtherance of the drug trafficking crimes charged in the previous counts, in violation of 18 U.S.C. § 924(c)(1). All offenses are alleged to have occurred on or about October 28, 2004. (Docket # 1).
As explained in this Court's Report and Recommendation dated October 27, 2005, Sykes was initially prosecuted in Monroe County Court for state crimes arising from the same facts that underlie this federal prosecution. On October 28, 2004, law enforcement officers executed a search warrant for Sykes's downstairs apartment at 263 Emerson Street in the City of Rochester. As a result of evidence seized during that search, Sykes was thereafter indicted by a New York State grand jury for various narcotics offenses. Sykes challenged the lawfulness of the search warrant, and Acting Monroe County Court Judge John R. Schwartz found that it lacked probable cause. Judge Schwartz therefore suppressed the evidence seized from Sykes's apartment.
On April 14, 2005, one week following the suppression of evidence in state court, Sykes was indicted on the pending federal charges. Pursuant to this Court's scheduling order, on July 14, 2005, Sykes filed his initial pretrial motions, which included a motion to suppress evidence seized from his apartment on the grounds that the search warrant lacked probable cause. (Docket # 18). The government conceded that it would lack sufficient evidence to prosecute Sykes if his probable cause challenge were successful. In view of that concession and with the parties' agreement, this Court first addressed the issue of probable cause for the search warrant. (Docket # 37). By Report and Recommendation issued on October 27, 2005, I recommended that Sykes's motion be denied. United States District Judge Michael A. Telesca affirmed that recommendation, concluding that regardless of whether the warrant lacked probable cause, suppression in federal court was not warranted due to the good faith exception established in United States v. Leon, 468 U.S. 897 (1984), which was unavailable in New York State court. See People v. Bigelow, 497 N.Y.S.2d 630, 637 (1985). (Docket # 71).
This Court now turns to Sykes's remaining motions. Currently pending for Decision and Order are Sykes's motions for a Franks hearing and for disclosure of grand jury minutes. Also pending for Report and Recommendation are Sykes's motions to suppress statements and tangible evidence and to dismiss the indictment. (Docket ## 18, 75).
D & O and R & R, July 31, 2006, pp.2-3.
In papers, filed on September 8, 2006 by his counsel, James S. Wolford, Esq., defendant objects to those portions of Magistrate Judge Payson D & O and R & R which:
(1) concluded that Sykes did not have standing to challenge the search of the vehicles, and that, even if Sykes had standing to challenge the search, the search of the automobiles was within the curtilage of the search warrant's authorization; (2) denied Sykes' motion for a Franks v. Delaware, 438 U.S. 154 (1978) hearing; (3) denied Sykes' motion for disclosure of the grand jury minute; and (4) denied Sykes' motion to dismiss the indictment due to double jeopardy and vindictive prosecution.
However, prior to Mr. Wolford's filing, the Court, on September 6, 2006, received in the mail directly from defendant forty-six hand printed pages of argument on the same objections subsequently raised by Mr. Wolford on his behalf, as well as argument relating to speedy trial, an issue that he previously raised pro se which was also addressed by Magistrate Judge Payson in her R & R of July 31, 2006. At a court appearance on September 13, 2006, the Court handed defendant's submission, which had never been filed, to Mr. Wolford, who had obviously not seen it before, and advised defendant that, since he was represented, submissions must be made and filed through counsel. Then by letter dated September 13, 2006 and received by the Court on September 14, 2006, Mr. Wolford indicated that, after consulting with his client and based upon his client's desire, he was submitting the hand printed papers which defendant had prepared. Although defendant sent his submission to the Court without his lawyer's knowledge and although it was not technically timely filed, the Court, in an abundance of caution, will nonetheless consider it. Moreover, it should be noted that in papers filed in ...