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United States v. Parker

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK


January 7, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
TRYN PARKER, DEFENDANT.

The opinion of the court was delivered by: David G. Larimer United States District Judge

DECISION AND ORDER

This Court referred pretrial motions in this criminal case to United States Magistrate Judge Marian W. Payson pursuant to 28 U.S.C. § 636(b). Several motions have been filed, some by counsel for defendant and some by defendant himself pro se. Defendant sought to suppress evidence relating to photographic identifications and to dismiss the indictment based on vindicative prosecution. Magistrate Judge Payson issued a thorough 13 page Report and Recommendation (Dkt. #51). No objections to that Report and Recommendation were filed by defense counsel but Parker submitted a somewhat lengthy document (Dkt. #59) objecting to Magistrate Judge Payson's Report and Recommendation (Dkt. #51). The objections were not filed timely. Parker also moved to dismiss on the grounds of a speedy trial violation.

I have carefully reviewed Magistrate Judge Payson's Report and Recommendation (Dkt. #51), and I find no basis to alter or modify it. I, therefore, accept the Report and Recommendation and adopt its conclusions. I find no basis to suppress the identification and no basis to dismiss the indictment based on so-called vindictive prosecution.

Because plaintiff is represented by counsel, defendant has no right to file pro se motions, and I reject and deny his pro se objections and motion to dismiss for a speedy trial violation. I have, though, considered the substance of Parker's objections and motion to dismiss, and I find no merit to either the objections or the motion to dismiss based on a violation of speedy trial.

Parker had filed several other pro se motions (Dkt. ## 47, 52). Those motions were untimely and in violation of the scheduling order. I did issue an order (Dkt. #54) referring those pro se motions to Magistrate Judge Payson to recommend whether the Court should even consider the motions because Parker has counsel and had filed these motions pro se.

On December 22, 2009, Magistrate Judge Payson issued a Report and Recommendation (Dkt. #57) recommending that this Court deny the pro se motions. The basis for the Magistrate Judge's decision was principally because Parker has no right to so-called hybrid representation, that is, to have the benefit of counsel and also file pro se motions. Magistrate Judge Payson discusses at length the rule and the reasons for it. I agree with her analysis of the law and the reasons in this case why such hybrid representation should not be allowed. Therefore, I accept and adopt Magistrate Judge Payson's Report and Recommendation, and I deny defendant's pro se motions (Dkt. ## 47, 52). Furthermore, the Court will not accept further pro se motions filed by this defendant.

While these matters were pending, plaintiff submitted an affidavit (Dkt. #62), sworn to December 22, 2009, which this Court received on December 30, 2009. Defendant discusses what he views as violations of the Fourth, Fifth and Sixth Amendments of the Constitution. I do not treat this as a motion but even if I were to do so, I deny it on the grounds that it is filed, pro se, and defendant has counsel. Furthermore, there is nothing in the lengthy affidavit to warrant any relief or any finding of a Fourth, Fifth or Sixth Amendment violation.

Defendant's pro se amended motion to dismiss (Dkt. #58) is denied as moot.

IT IS SO ORDERED.

20100107

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