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United States of America v. John A Burke

July 1, 2011

UNITED STATES OF AMERICA, PLAINTIFF
v.
JOHN A BURKE, ET. AL, DEFENDANT.



The opinion of the court was delivered by: Johnson, Senior District Judge:

ORDER ADOPTING REPORT AND RECCOMENDATION

Defendant John Burke has been indicted on racketeering conspiracy based on predicate acts including three murders, narcotics trafficking, robbery and other offenses. He filed two omnibus pre-trial motions seeking various forms of relief, including dismissal of the charges, suppression, severance, particularization, Brady material, and an order requiring the Government to narrow the charges on the grounds that they are multiplicitous. (See Docket Entry ("DE") 123 and 124 (duplicate entry); and DE177.) Presently before the Court is a Report and Recommendation (the "R&R") prepared by United States Magistrate Judge James Orenstein, recommending that the Court denies Burke all of his requests for relief. (DE 202.) Burke timely filed his objections, (DE 209), and the Government did not file any. After careful consideration of Burke' objections, and for the reasons that follow, this Court adopts Judge Orenstein's R&R in its entirety.

DISCUSSION

A.Standard of Review

A district judge reviews those portions of a Report and Recommendation to which a party has timely objected under a de novo standard of review. 28 U.S.C. § 636(b)(1)(C). After reviewing the Report and Recommendation of a magistrate judge, the district judge "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). A district judge is required to "determine de novo any part of the magistrate judge's disposition that has been properly objected to." FED. R. CIV. P. 72(B)(3). The district judge is not required to review, under a de novo or any other standard, factual or legal conclusions of the magistrate judge as to those portions of the Report and Recommendation to which no objections are addressed, so long as such are not clearly erroneous. 28 U.S.C. § 636(b)(1); FED. R. CIV.P. 72(B)(3); see also Allen v. Senkowski, No. 97-CV-3296 (NBM), 2003 WL 169788, at *1 (S.D.N.Y.2003) ("[T]the uncontested portions of the magistrate judge's report may be adopted unless they show clear error.")

In this case, Burke has logged objections to the following sections of Judge Orenstein's R&R:

1. R&R Section II.A-Dismissal of all counts: Double Jeopardy Clause. (See R&R DE 202 at 2--3; Burke's Objections DE 209 at 1--6.)

2. R&R Sections II.B and II.K-Dismissal Counts One, Four and Five: Statute of Limitations (See R&R DE 202 at 3--5, 23--24; Burke's Objections DE 209 at 1--6.)

3. R&R Section II.C-Suppression (See R&R DE 202 at 5--11; Burke's Objections DE 209 at 7--12.)

4. R&R Section II.F-Multiplicity: Charges Related to the Gebert Murder (See R&R DE 202 at 14--15; Burke's Objections DE 209 at13.)

5. R&R Section II.G- Multiplicity: Firearms Offenses (See R&R DE 202 at 15--16; Burke's Objections DE 209 at 13.)

6. R&R Section II.I- Dismissal of Counts Four and Five: Vagueness (See R&R DE 202 at 18--20; Burke's Objections DE 209 at 14.)

7. R&R Section II.I- Pre-Indictment Delay: Racketeering Act Two (See R&R DE 202 at 20--22; Burke's Objections DE 209 at 14--15.)

8. R&R Sections II.L and II.M- Severance of Co-Defendants Charged with Witness Tampering and Severance of Racketeering Act Two, respectively: Firearms Offenses (See R&R DE 202 at ...


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