The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
DECISION AND ORDER AND REPORT, RECOMMENDATION AND ORDER
This case was referred to the undersigned by the Hon. William M. Skretny, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #19.
The defendant, Reginald Hilton (hereinafter, "defendant" or "Hilton"), is charged in a three count Indictment with having violated Title 18, United States Code, Section 1344(a)(2) (Counts 1 and 2) and Title 18, United States Code, Section 1349 (Count 3). Dkt. #11.
Presently pending before this Court is defendant's motion to suppress statements (filed as part of the defendant's omnibus motion for discovery*fn1 ) (Dkt. #31) and defendant's motion to dismiss the Indictment*fn2 (Dkt. #37 and addendum, Dkt. #32). The government has filed its response to defendant's motion to suppress statements (Dkt. #34), as well as its response to the defendant's pro se motion to dismiss the Indictment (Dkt. ##39 and 40). Thereafter, the defendant filed a reply in further support of his pro se motion. Dkt. ##43 and 44. What follows is this Court's Decision and Order with respect to defendant's motion to suppress statements and this Court's Report, Recommendation and Order with respect to the defendant's pro se motion to dismiss the Indictment.
The defendant was initially charged in a Criminal Complaint on or about April 23, 2009. Dkt. #1. The Criminal Complaint charged the defendant with one count of violating Title 18, United States Code, Section 1344, "in that the defendant presented and successfully cashed ten checks that purported to be drawn on the First Niagara payroll checking account of PLS III LLC, but which in fact were counterfeit checks not issued with the knowledge or permission of PLS III LLC." Dkt. #1. At the defendant's request, an attorney, Noemi Fernandez-Hiltz, Esq., was appointed to represent him in connection with the Criminal Complaint.
Also on April 23, 2009, a related case against Thomas Brown was commenced by reason of the filing of a separate Criminal Complaint. On July 1, 2009, defendant Brown pled guilty before United States District Judge William M. Skretny to a felony Information charging him with bank fraud in violation of Title 18, United States Code, Section 1344(a)(1). As part of his plea agreement, Thomas Brown agreed to cooperate with the government by providing complete and truthful information regarding his knowledge of criminal activity. See Dkt. #39-5, pp.1-18.
Thereafter, on or about September 9, 2009, a Federal Grand Jury sitting in the Western District of New York returned a three count Indictment charging the defendant with violating Title 18, United States Code, Section 1344(a)(2) (Counts 1 and 2) and Title 18, United States Code, Section 1349 (Count 3). Dkt. #11. After the return of the Indictment, Noemi Fernandez-Hiltz, Esq. continued her representation of the defendant.
Beginning as early as July 9, 2009 and continuing until the assignment of new counsel in October 2009, the defendant expressed his concerns about Ms. Fernandez-Hiltz's representation of him and further, asserted that Ms. Fernandez-Hiltz had improperly disclosed to counsel for the government privileged attorney-client communications. On October 21, 2009, this Court granted Ms. Fernandez-Hiltz's motion to withdraw as counsel and granted defendant's motion for new counsel. On October 28, 2009, this Court confirmed that Paul G. Dell, Esq. had been assigned to represented the defendant. Later that same day the Court issued a Scheduling Order setting forth the following deadlines: discovery to be completed by November 13, 2009; pre-trial motions due by December 31, 2009; responses due by January 15, 2010; and oral argument was scheduled for February 5, 2010. Dkt. #16.
Sometime on or after December 26, 2009, my Chambers received what purported to be a pro se Motion to Dismiss Indictment directly from the defendant. At that time, my Chambers spoke to the defendant's attorney, Paul G. Dell, Esq., concerning the pro se motion and inquired as to whether the defendant and Mr. Dell had reached an impasse whereby the defendant was wishing to proceed pro se. Mr. Dell advised my Chambers that he did not believe that he and the defendant had reached an impasse and that he believed that the reason the defendant submitted the pro se motion to dismiss the Indictment was that the defendant was unaware that Mr. Dell intended to seek an extension of the December 31, 2009 deadline to file pre-trial motions. Accordingly, the defendant's pro se motion to dismiss the Indictment was not electronically filed with the Court, however the original was retained in my Chambers' file.*fn3
On December 28, 2010, Mr. Dell, on behalf of the defendant, did indeed file a motion for an extension of time to file pre-trial motions. Dkt. #18. Defendant's motion for an extension of time was granted and an Amended Scheduling Order was issued on January 6, 2010 setting a motion deadline of February 1, 2010. Dkt. #21. Thereafter, Mr. Dell, on behalf of the defendant, filed two additional motions for an extension of the time to file pro se motions (Dkt. ##23 and 27). Both motions were granted and a Third Amended Scheduling Order and a Fourth Amended Scheduling Order were issued (Dkt. ## 24 and 28). On March 30, 2010, Mr. Dell, on behalf of the defendant, filed an Omnibus Motion for Discovery and Motions to Suppress Statements and Identification Evidence. Dkt. #31. The government filed its opposition to the defendant's omnibus motion for discovery and motions to suppress, as well as the pro se Addendum to defendant's pro se motion to dismiss (as set forth above, at the time the government filed its initial response to the motions filed by and on behalf of the defendant, defendant's original pro se motion had not yet been electronically filed).
On May 7, 2010, this Court heard oral argument as to the motions filed by and on behalf of the defendant. During oral argument, defendant acknowledged that the government provided the discovery sought in the omnibus discovery motion. Therefore, the Court denied as moot, the defendant's omnibus motion for discovery. Also during oral argument, the Court addressed that portion of the defendant's motion seeking the suppression of identification evidence, finding that the issue of admissibility of an identification of the defendant by a cooperating witness is one to be addressed by the trial judge at the time of trial. Accordingly, the Court denied as moot, that portion of the defendant's motion seeking to suppress the identification evidence. The defendant's motion to suppress statements is presently pending and will be addressed below.
In addition to the foregoing, the defendant requested that the papers he submitted to the Court ex parte in December 2009 be filed with the Clerk of Court with copies to be provided to his attorney and to counsel for the government. The Court directed that the government respond to the pro se motion by May 28, 2010 and that any reply be filed by June 11, 2010. The Court indicated that oral argument would be scheduled, if necessary. The government did file its opposition to the defendant's pro se motion on May 28, 2010 (Dkt. #39) and it subsequently filed a corrected affidavit on June 1, 2010 (Dkt. #40). Notwithstanding the direction of this Court, the defendant did not file his reply until June 16, 2010, at which time the Court took the motion under advisement.
As discussed above, on September 9, 2009, a Federal Grand Jury sitting in the Western District of New York returned a three count Indictment charging the defendant, Reginald Hilton, with defrauding two federally insured financial institutions, Key Bank (Count 1) and First Niagara Bank (Count 2) in violation of Title 18, United States Code, Section 1344(a)(2) and with conspiracy to defraud those two banks (Count 3) in violation of Title 18, United States Code, Section 1349. Specifically, each count alleges that the defendant "caused inauthentic (i.e. false) checks purporting to be drawn on the banks to be presented at those banks, and thereby obtained the funds of those banks upon the false pretense that the checks were authentic." Dkt. #34, p.1. More specifically, the government summarizes the charges as follows,
[i]n Count One, it is alleged that between approximately December 19, 2008 and January 31, 2009, the defendant caused checks that purported to be checks drawn on a Key Bank checking account of Creditors Financial Group, LLC (but which the defendant knew were not authentic checks) to be presented at Key Bank, and thereby obtained more than $17,000 from Key Bank.
In Count Two, it is alleged that between approximately March 20, 2009 and March 27, 2009, the defendant caused checks that purported to be checks drawn on a First Niagara checking account of PLS III LLC (but which the defendant knew were not authentic checks) to be presented at First Niagara, and thereby obtained more than $6,000 from First Niagara.
In Count Three, it is alleged that between approximately December 19, 2008, and March 27, 2009, the defendant conspired to violate section 1344 by causing checks that purported to be checks drawn on Key Bank and First Niagara checking accounts (but which the defendant knew were not authentic checks) to be presented at Key Bank and First Niagara, and thereby obtained money from those financial institutions.
As described by the government, the defendant personally cashed numerous checks at Key Bank and enlisted the assistance of at least two other persons, Jacqueline Townsel and Thomas Brown to do the same. Dkt. #34, p.4. The government maintains that its proof at trial will be that the checks were fabricated counterfeit checks that appeared to be drawn on the Key Bank account of Creditors Financial Group, LLC. Id. These checks were neither signed by the account holder (Creditors Financial) nor were they otherwise authorized by Creditors Financial. Id. The defendant personally cashed seventeen of the counterfeit checks at Key Bank. Id. The checks were made payable to him and the defendant endorsed them. Id. Surveillance photographs are available with respect to most of the checks. Id. at pp.4-5. According to the government, "most of the checks bear a single inked ...