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United States of v. Rodney Hill

April 6, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
RODNEY HILL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

This case was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #3.

PRELIMINARY STATEMENT

The defendant, Joseph Marble ("Marble"), along with nineteen others, is charged in a multi-count Superseding Indictment (Dkt. #296) with conspiracy to possess with intent to distribute cocaine and cocaine base and three counts of using a telephone to facilitate possession with intent to distribute and distribution of controlled substances. Presently pending is the government's motion to reconsider this Court's March 26, 2012 Report, Recommendation and Order (Dkt. #433) wherein this Court recommended, inter alia, the suppression of certain evidence obtained pursuant to Title III intercept orders.*fn1

FACTS

Defendant Marble filed his dispositive and non-dispositive pretrial motions on November 29, 2011. Dkt. #366. Among the multiple bases for relief articulated in those pretrial motions, defendant Marble sought the suppression of wiretap evidence by reason of, inter alia, the government's failure to timely seal the tapes of the intercepted wire and electronic communications. Id. at pp.69-70. In its initial response to defendant's Marble's motion to suppress based on the failure to timely seal filed on December 10, 2011 (Dkt. #381), the government stated,

[t]he Government needs to obtain further information to properly respond to defendant's motion and therefore seeks leave to file an additional response on this issue. The Government believes that all intercepts were sealed in a timely fashion as required under applicable authorities.

Dkt. #381, p.25. Despite his request to file an additional response on this issue, counsel for the government failed to raise this matter during the December 14, 2011 oral argument on the pretrial motions. Moreover, counsel for the government did not file an additional response. On March 15, 2012, this Court issued a Text Order stating as follows:

Defendant Joseph Marble has filed a motion asserting that the time within which the government sealed the recordings of the intercepted electronic and wire communications (Dkt. #366) was not satisfactory pursuant to Title 18, United States Code, Section 2518(8)(a) and this Court deems the response of the government (Dkt. #381) to be inadequate. This Court examined the sealing orders in question and those sealing orders indicate that the sealing did not immediately occur in all instances and therefore, the government is hereby ordered to submit an in camera explanation for each delay no later than 5:00 p.m. on March 20, 2012. See, United States v. Vazquez, 605 F.2d 1269 (2d Cir. 1979); United States v. Wong, 40 F.3d 1347 (2d Cir. 1994); United States v. Gallo, 863 F.2d 185 (2d Cir. 1988), cert. denied, 484 U.S. 1083 (1989); United States v. Massino, 784 F.2d 153 (2d Cir. 1986). SO ORDERED. Issued by Hon. H. Kenneth Schroeder, Jr. on March 15, 2012.

Dkt. #418. Although counsel for the government filed an affidavit on March 20, 2012 (Dkt. #425), it failed to adhere to this Court's directive that the affidavit be filed under seal and that affidavit was filed as a matter of public record. In that affidavit, with respect to the failure to timely seal the Title III Order assigned Miscellaneous Criminal Number 09-MR-97 for the period November 5, 2009 to December 6, 2009, counsel for the government stated, in part, "[a]n inquiry with District Judge Skretny's Courtroom Deputy indicated that Judge Skretny did not have a calendar on Tuesday, 12/08/09 and Wednesday, 12/09/09, and therefore was not available for the disc to be sealed until 12/10/2009." Dkt. #425, ¶ 7. In my Report, Recommendation and Order, I stated,

First, the government has failed to explain the delay in removing the disc from Voice Box from December 6, 2009 at 8:00 a.m. when the Order expired and December 10, 2009, when it states the disc was removed from Voice Box, a delay of four days. Second, the government has failed to explain why the sealing Order could not have been presented to Chief Judge Skretny on December 7, 2009 and instead merely chose to explain why Chief Judge Skretny was not available on December 8, 2009 and December 9, 2009. Moreover, the government has failed to explain why the sealing Order could not have been obtained from one of the other four District Judges in the Western District of New York. See United States v. Rodriguez, 786 F.2d 472, 477 (2d Cir. 1986) and United States v. Vazquez, 6-5 F.2d 1269, 1280 n.25 (2d Cir. 1979). As a result, there being an inadequate explanation as to why the government did not timely obtain a sealing order, it is recommended that the recordings obtained pursuant to the Order filed in 09-MR-97 be suppressed.

Dkt. #433, p.26.

On April 3, 2012, counsel for the government sought an extension of time from District Judge Arcara to file objections to this Court's Report, Recommendation and Order. Dkt. #440. As set forth in my Report, Recommendation and Order, objections had to be filed within fourteen (14) days after receipt of a copy of the Report, Recommendation and Order. Here, objections to this Court's Report, Recommendation and Order filed March 26, 2012 are due April 9, 2012. In its motion for an extension of time, counsel for the government explained that it would be filing later that same day (April 3, 2012) a motion for reconsideration of this Court's Report, Recommendation and Order. By Text Order issued April 4, 2012, District Judge Arcara denied the request for an extension of time (Dkt. #444) stating,

The motion of the United States for an extension of time 440 to file objections to the Report and Recommendation 433 suppressing evidence is denied. The United States did not file a request for reconsideration before the Magistrate Judge within the time it represented it would do so, but if it later files a motion for reconsideration, and reconsideration is granted by the Magistrate Judge, the United States ...


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