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United States v. Crosby

August 5, 2010

UNITED STATES OF AMERICA,
v.
JEROME CROSBY, WALLACE PEACE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Hugh B. Scott

Report & Recommendation

This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(C) (Docket No. 8, Aug. 8, 2008). The instant matter before the Court is defendants' separate omnibus motions, some of which seek suppression of statements, suppression of evidence, and a motion to dismiss counts as to certain defendants (e.g., Docket Nos. 292 (Jerome Crosby), 256 (Patrick Perry), 250 (Wallace Peace)*fn1 ). Some of these motions were filed under the initial Indictment and were renewed when the Superseding Indictment was filed.

Addressed herein is the motion to suppress statements and other non-discovery relief sought by Wallace Peace ("Peace") (Docket No. 250); a separate Report and Recommendation will consider co-defendants' suppression motions. The Government filed an omnibus response (Docket No. 314) to all of the moving defendants' motions and leave was granted, nunc pro tunc, to allow filing of an excessive memorandum. Oral argument of these motions was heard on January 8, 2010, and evidentiary hearings were ordered for February 8, 2010 (text minute entry, Jan. 8, 2010). Peace's suppression hearing was commenced on February 25, 2010 (Docket No. 364, transcript), continued through March 15, 2010 (Docket No. 365, transcript; text minute entry, Mar. 15, 2010), and completed on March 23, 2010 (Docket No. 351, transcript; text minute entry, Mar. 23, 2010). Peace's post-hearing submission was due by June 15, 2010, and the Government's post-hearing response was due by June 29, 2010 (Docket No. 371). Peace filed a timely post-hearing memorandum (Docket No. 380), which the Government responded to (Docket No. 392). The motion was argued on July 13, 2010, and the motion was deemed submitted after filing additional briefing on July 23, 2010 (text minute entry, July 13, 2010). The Government filed its submission (Docket No. 400), distinguishing this case from Lynumn v. Illinois, 372 U.S. 528 (1963), a case relied upon by Peace. Peace then filed his timely submission (Docket No. 401), wherein he argues that the totality of the circumstances--his family's distress during the police entry and search, his prior conviction, his desire to avoid police attention upon his family, and the agent's invitation that he "help himself"--all show psychological coercion (id. at 2-3).

Also pending (and addressed in a separate Order) are Peace's (Docket No. 249) and other co-defendants' omnibus motions for discovery relief or joinder in co-defendants' motions*fn2.

BACKGROUND

This case now involves 30 defendants (29 of whom are now before this Court*fn3 ) arising from a Drug Enforcement Administration and Buffalo Police Department investigation of alleged drug trafficking and related criminal activities of Peace, Patrick Perry, and Jerome Crosby in the spring of 2008.

The Government characterizes (see Docket No. 314, Gov't Response at 2) this case as arising from an extensive narcotics trafficking investigation, where the grand jury initially returned an 86-count Indictment (Docket No. 1) against 27 defendants. Later that Indictment was superseded by the present 109-count Indictment (Docket No. 190) against 30 defendants. Most of the counts (Counts 2-92) in the Superseding Indictment charge violations of 21 U.S.C. § 843(b), using a communications facility (a telephone) in causing and facilitating the commission of acts constituting possession with intent to distribute, distribution, and conspiracy to distribute cocaine and cocaine base, listed in the Indictment as a table of defendants, the dates and times of their alleged felonious conversations.

In April 2008, the Drug Enforcement Administration ("DEA") with the Buffalo Police Department investigated the criminal activities of Peace and his alleged criminal associates (Docket No. 314, Gov't Response at 3). In June and July of that year, Buffalo Police officers and DEA agents obtained New York State eavesdrop orders for telephones used by Peace, Patrick Perry and Crosby, whom the Government contends are the lead defendants in this case (id. at 3, 2). The Government contends that the evidence would show that Peace headed "an active cocaine distribution organization operating in and around Buffalo," that he handled day-to-day distribution as well as operating a group of youths to conduct home invasions and robberies of rival drug dealers (id. at 4). Peace also allegedly trafficked in weapons and contacted other drug suppliers, such as Patrick Perry (id. at 4-5). The investigation revealed that Patrick Perry had a supplier by the name of Jerome Crosby who had been traveling to New York City in June and July 2008 to acquire kilogram quantities of cocaine (id. at 5). Arrest and search warrants were executed on July 29, 2008 (id.). This suppression motion arises from the execution of these warrants.

Peace's Suppression Motion

Defendant Peace seeks to suppress statements made during his arrest. At the suppression hearing for this motion, the Government called Buffalo Police Department Detective Johnny Walker and the federal Bureau of Alcohol, Tobacco and Firearms ("ATF") agent Thomas Rodriguez, while Peace called Mrs. Vernell Peace, his wife. On July 29, 2008, the Buffalo Police Department executed a search warrant at 967 Northland Avenue, Buffalo, New York. Detective Walker testified that, after SWAT team officers entered and secured the premises, he entered and saw a female and some children who were really upset due to the shooting and killing of their dog. (Docket No. 380, Def. Post-Hearing Memo. at 3; Docket No. 364, Feb. 25, 2010, Tr. at 5, 9, 14, 48-49, hereinafter "Feb. Tr."; Docket No. 392, Gov't Post-Hearing Memo. at 1.) Detective Walker was directed to Peace, who was handcuffed and with other police officers in an upstairs bedroom (Docket No. 364, Feb. Tr. at 6; Docket No. 380, Def. Post-Hearing Memo. at 3; Docket No. 392, Gov't Post-Hearing Memo. at 2). Detective Walker asked Peace if there were any drugs or guns in the house and Peace answered that there was a gun under the bed and drugs in the closet (Docket No. 364, Feb. Tr. at 5-6, 10-11; Docket No. 380, Def. Post-Hearing Memo. at 3; Docket No. 392, Gov't Post-Hearing Memo. at 2). With a drug sniffing dog, officers retrieved the gun and drugs (Docket No. 364, Feb. Tr. at 6; Docket No. 392, Gov't Post-Hearing Memo. at 2). Peace then was advised of his Miranda rights (Docket No. 364, Feb. Tr. at 7, 6-8, 11-12; Docket No. 380, Def. Post-Hearing Memo. at 3). Detective Walker asked if Peace wanted to make a statement and Peace said that he wanted to speak to someone, so Detective Walker got ATF agent Rodriguez who then spoke with Peace (Docket No. 364, Feb. Tr. at 7, 11; Docket No. 380, Def. Post-Hearing Memo. at 3; Docket No. 392, Gov't Post-Hearing Memo. at 3). Agent Rodriguez testified that he took Peace's written statement (Docket No. 364, Feb. Tr. at 23; Docket No. 380, Def. Post-Hearing Memo. at 3; Docket No. 392, Gov't Post-Hearing Memo. at 4, Ex. A), with Peace initialing changes on that statement and signing it at the end (Docket No. 392, Gov't Post-Hearing Memo. at 4, Ex. A). Agent Rodriguez twice asked Peace if he had been advised of his rights and Peace assured him that he had been (Docket No. 364, Feb. Tr. at 22, 23; Docket No. 392, Gov't Post-Hearing Memo. at 4).

Detective Walker testified that he did not threaten or coerce Peace into making a statement (Docket No. 364, Feb. Tr. at 7-8, 11; Docket No. 392, Gov't Post-Hearing Memo. at 3).

Peace's wife, Vernell, testified that Detective Walker returned from upstairs and threatened her and the children with arrest if her husband did not cooperate with the police (Docket No. 365, Tr. of Mar. 15, 2010, at 56, hereinafter "Mar. Tr."; Docket No. 392, Gov't Post-Hearing Memo. at 5); Detective Walker denies this charge (Docket No. 364, Feb. Tr. at 11, 14-15; Docket No. 392, Gov't Post-Hearing Memo. at 5). Peace did not testify.

Peace now argues that his statements should be suppressed because his initial admissions as to the location of the drugs and firearm were made before he was advised of his Miranda rights, since he was in custody and being interrogated when he made those admissions (Docket No. 380, Def. Post-Hearing Memo. at 4). As for his statements following being advised of his rights, Peace argues that they were coercive and should be ...


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