The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.
INTRODUCTION AND BACKGROUND
Chiran J. Kantipuly ("defendant"), is charged in a 128-Count Indictment with conspiracy to defraud the United States, mail fraud and wire fraud based on acts allegedly occurring between January 1999 and August 2003 in a purported scheme to obtain money from Niagara Mohawk Power Company ("Niagara Mohawk").*fn2 The indictment alleged that defendant and co-conspirator, Frank J. Grabowski ("Grabowski"), then an employee of Niagara Mohawk, conspired to submit and did submit, via telephone and mail, false invoices to Niagara Mohawk for services performed or products provided which were not, in fact, ever performed or provided. Grabowski allegedly would advise defendant with respect to where, when and how to submit the false invoices and, after submission of such, would authorize payment to defendant on Niagara Mohawk's behalf and defendant would, in turn, pay Grabowski what is commonly known as a kickback. On September 2, 2005, Grabowski pled guilty to one count of conspiracy to commit wire fraud and agreed to cooperate with the Government, which cooperation would necessarily include testifying against defendant at any trial in this case.
On May 26, 2006, defendant made what is commonly called Omnibus Motions, seeking various items and categories of discovery, both dispositive and nondispositive in nature. (Dkt. #31).*fn3 This included a motion to suppress (1) Grabowski's testimony against defendant at trial, (2) evidence seized from defendant and (3) statements made by defendant at the time of his arrest. On October 16, 2006, the Magistrate Judge entered a Decision and Order (Dkt. #50) resolving the nondispositive discovery motions and also filed a Report and Recommendation (Dkt. #51) recommending denial of the suppression motion relating to all three categories of evidence sought to be suppressed.
On June 30, 2006, the defendant filed a motion for Reconsideration and Reduction of Bail previously set by the Magistrate Judge (Dkt. #27).*fn4 On October 5, 2006, the Magistrate Judge issued a Decision and Order denying the motion (Dkt. #43).
Pending before the Court are defendant's objections to the Magistrate Judge's Report and Recommendation ("R&R") recommending denial of the suppression motion, appeal of the Decision and Order of the non-dispositive discovery motions (Dkt. #57) and appeal of the Magistrate Judge's Decision and Order denying the motion for reconsideration and reduction of bail (Dkt. #54) and also a motion for release from custody and review of the Magistrate Judge's aforementioned Decision and Order regarding bail (Dkt. #53).*fn5
Familiarity with the facts is presumed, as they have been detailed in the previous Decision and Orders and R&R of the Magistrate Judge. The Court will first address a minor housekeeping detail. The defendant in this case is pro se and the objections and appeal of the Magistrate Judge's decisions and recommendations resolving the motions herein were made by defendant pro se. However, the underlying motions were made, briefed and argued before the Magistrate Judge by counsel representing the defendant at the time.*fn6 Because defendant was represented by counsel with respect to these motions, any additional leniency or consideration that may be appropriate in pro se situations is not applicable when considering these motions and the Magistrate Judge's decisions and recommendations thereon. The Court will, however, construe defendant's objections and arguments on appeal as raising the strongest possible points, as they were filed pro se.
The Report and Recommendation Objections
As previously mentioned, defendant's "objection" to the R&R was filed in conjunction with his "appeal" of the Decision and Order regarding discovery.*fn7 Even when construed liberally, the defendant provides no facts, information or argument regarding the suppression motion which the Court can construe as objections or individual bases for objections to the R&R. Rather, the gravamen of this document relates only to the discovery issues. The Court will, however, construe defendant's papers liberally and acknowledge that a general objection to the R&R has been properly filed.
A District Court "shall make a de novo determination of those portions of the %%% [R&R] to which objection is made." 28 U.S.C. §636(b)(1)(C); United States v. Raddatz, 447 U.S. 667, 675-676 (1980); Sieteski v. Kuhlmann, 2000 WL 744112, at *1 (W.D.N.Y. 2000). The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge", and may adopt those parts of the R&R to which no specific objection is raised so long as such are not clearly erroneous. 28 U.S.C. §636(b)(1)(C) (emphasis added). Objections to a Magistrate Judge's R&R in this District are also governed by Rule 58.2 of the Local Rules of Criminal Procedure for the United States District Court for the Western District of New York ("Local Rules"). Local Rule 58.2(a)requires these objections to be specific, stating in pertinent part that:
"The written objections shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for such objection and shall be supported by legal authority." Local Rule 58.2(a)(3).
It is clear that a de novo review is required when specific objections are properly made. However, when a party fails to object, or when the objections are only generally made, procedural default may result or, at the court's discretion, the objections may be reviewed for clear error. See, U.S. v. USA Remediation Services, Inc., 2005 WL 1000023, *1 (W.D.N.Y. 2005) (failure to comply with local rules governing the manner of objecting to a magistrate judge's findings justifies dismissal of the objections); Barratt v. Joie, 2002 WL 335014, at *1 (S.D.N.Y. 2002) ("[w]hen a party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the R&R only for clear error"); e.g., Almonte v. New York State Div. of Parole, 2006 WL 149049 (N.D.N.Y. 2006) (specific objections reviewed under a de novo standard, while general objections, although they could have resulted in default, were reviewed under a clearly erroneous standard pursuant to the discretion of the court); Gee Chan Choi v. Jeong-Wha Kim, 2006 WL 3535931, *2 (E.D.N.Y. 2006) (plaintiff's objections merely requested a second opportunity to present the same issues already presented to the Magistrate without objecting to any specific portion of the R&R and were hence reviewed only for clear error).*fn8 In the instant case, because the Court can, at best, construe defendant's objection to the R&R on this suppression issue only as a general one, pursuant to the discretion of the Court and in consideration of defendant's pro se status, it will be reviewed for clear error.
Under a clear error standard, a court will not overturn a previous ruling or finding unless, in light of all of the evidence in a case, the court "is left with the definite and firm conviction that mistake has been committed". United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). After a thorough review of the R&R and the record herein, this Court finds no clear error in Magistrate Judge Foschio's findings of fact or conclusions of law regarding the suppression motion.
First, with respect to suppression of Grabowski's testimony, while Grabowski's testimony as a cooperating witness is certainly suspect, suppression of such is not warranted per se and an appropriate cautionary instruction to the jury at trial will be sufficient to address the nature of any claimed bias or untrustworthiness of the testimony. United States v. Gleason, 616 F.2d 2, 15 (2d Cir. 1979) (citing cases), cert. denied, 444 U.S. 1082 (1980).
Second, the search of defendant's person and property, including his automobile was done during the course of a routine border search for which no reasonable suspicion, probable cause or warrant is required, not even at the secondary inspection stage. United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985); United States v. Sanders, 663 F.2d 1, 2-3 (2d Cir. 1981); United States v. Bengivenga, 845 F.2d 593 (5th Cir.) (en banc), cert. denied, 488 U.S. 924 (1988). Additionally, the search of defendant's person and automobile was subsequent to the referral to secondary inspection upon the border agent's discovery of the outstanding arrest warrant, after the existence of the warrant was confirmed and hence also properly taken in the ...