The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
By Order of the Honorable Michael A. Telesca, United States District Judge, dated July 17, 2006, all pretrial matters in the above-captioned case were referred to United States Magistrate Judge Jonathan W. Feldman pursuant to 28 U.S.C. §§ 636(b)(1)(A)-(B). (Docket #10.) By a August 29, 2006 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 4, 2007, (Docket # 45) to the Report and Recommendation ("R & R") filed by Judge Feldman on August 22, 2007 (Docket # 44).
The defendant stands accused in a seven count second superceding indictment with offenses relating to the sexual exploitation of children; Count I and II charge production of child pornography; Count III charges transportation of a minor; Count IV charges aggravated sexual abuse; Count V charges possession of child pornography; Count VI charges use of an interstate facility to entice a minor; and Count VII charges travel with intent to engage in illicit sexual conduct. In his omnibus motion filed by counsel on November 30, 2006 (Docket #19), the defendant moved for suppression of physical evidence found in his apartment, as well as for the suppression of statements he purportedly made to the police. In regard to this application, an evidentiary hearing was conducted before Judge Feldman on February 7 and February 27, 2007. Subsequently, on April 27, 2007 (Docket #36), counsel filed a supplemental motion to suppress the physical evidence found in the defendant's residence. Furthermore, on April 16, 2007 (Docket #31) and May 18, 2007 (Docket # 40), the defendant himself filed pro se motions to suppress.
The Court has now had the opportunity to review Judge Feldman's R & R, the defendant's objections to the R & R, and the transcript of the hearing held on February 7th and February 27th of this year, along with the exhibits received at the hearing.
In pertinent part, 28 U.S.C. § 636(b)(1) directs:
(B) a judge may also designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of any motion excepted in subparagraph (A) . . . .
A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.
28 U.S.C. § 636(b)(1) (1995). A district judge, however, may not reject the credibility findings of a magistrate judge without conducting an evidentiary hearing in which the district judge has the opportunity to observe and evaluate witness credibility in the first instance. Cullen v. United States, 194 F.3d 401, 406 (2nd Cir. 1999).
In his R & R, Judge Feldman recommended: that defendant's application to suppress items seized from his residence at 515 Camelot Court Apartments be denied; that his application to suppress statements made to Detective James McLaughlin in Keene, New Hampshire on September 28, 2006, be denied; that his application to suppress statements made to Detective Scott Lambert in Canandaigua, New York on October 11, 2005, be denied; that his application to suppress statements made to Detective Scott Lambert in Canandaigua, New York on October 28, 2005 be denied; and that his application to suppress statements made to Special Agents Jeffrey Kassouf and Douglas Soika of the Federal Bureau of Investigation ("FBI").
With respect to the R & R, the defendant raises four objections. The Court will now consider these objections de novo. For convenience sake, the Court will address each of the defendant's objections under ...