UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK
November 3, 2010
UNITED STATES OF AMERICA,
XU HANG WANG, GREG SMILEY, LING ZEN HU, XIAO CHENG LIN, DEFENDANTS.
The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
This case was referred to Magistrate Judge Jeremiah J. McCarthy, pursuant to 28 U.S.C. § 636(b)(1), on September 21, 2007. The defendants filed numerous pretrial motions. On April 21, 2010, Magistrate Judge McCarthy filed a Report and Recommendation and Order: (1) denying defendants' non-dispositive motions for an audibility hearing, discovery, for a bill of particulars, severance, to strike surplusage and to change venue; and (2) recommending that defendant Smiley, Wang and Naim's motions to suppress evidence and statements be denied, and that defendant Hu's motions to dismiss the indictment and to suppress wiretap evidence be denied.*fn1 (See Dkt. No. 588).
Defendants filed objections to the Report, Recommendation and Order (see Dkt. Nos. 597, 608, 609, 611, 614, 615), and the government filed a response thereto. Oral argument on the objections was held on June 25, 2010 and September 3, 2010.
With regard to the non-dsipositive motions, pursuant to 28 U.S.C. § 636(b)(1)(A), the district court "may reconsider any pretrial matter under this [section] where it has been shown that the magistrate's order is clearly erroneous or contrary to law." Upon such review and after hearing argument from counsel, the Court finds that Magistrate Judge McCarthy's non-dispositive orders are neither clearly erroneous nor contrary to law. Accordingly, the defendants' objections to Magistrate Judge McCarthy's non-dispositive rulings are denied.
With regard to Magistrate Judge McCarthy's recommendations as to the dispositive motions, this Court must make a de novo determination of those portions of the Report, Recommendation and Order relating to the dispositive motions. Upon de novo review, and after reviewing the submissions and hearing argument from the counsel, the Court adopts the proposed findings of the Report, Recommendation, and Order. Accordingly, for the reasons stated by Magistrate Judge McCarthy, defendant Smiley, Wang and Naim's motions to suppress evidence and statements are denied, and defendant Hu's motions to dismiss the indictment and to suppress wiretap evidence are denied.*fn2
The case is referred back to Magistrate Judge McCarthy for further proceedings.