The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court
1. Presently before this Court is Damian Ard's and Janelle Hawkins' objections to Magistrate Judge Hugh B. Scott's Report and Recommendation. (Docket No. 581.) No other Defendants lodged objections.
2. Hawkins objects to the Report because it does not address her motion to suppress evidence seized under the authority of a search warrant for 118 Chestnut Street in Lockport, New York. Instead, Judge Scott found, "As stated in open court on January 22, 2013, Hawkins has abandoned motions for a Franks hearing or for a suppression hearing as to the search warrant of 118 Chestnut Street, Lockport." (R & R at 15.)
Hawkins contends that although she did waive the hearing on the motion to suppress, she did not abandon the motion itself, which, she urges, can be adjudicated without a hearing. The record from January 22, 2013 supports this representation:
MR. CONNORS [Hawkins' attorney]: I've had several discussions with the assistant United States Attorney on this matter. We have reached an agreement that we are permitted to contest any of the legal issues with respect to the search warrant, and contest them based upon the discovery record and other matters that have been developed, or any other external evidence under those circumstances. Given that, we do not believe it would be necessary to have an evidentiary hearing in our case.
MS. BAUMGARTEN: And that specifically relates to the request. They're withdrawing the request for a Franks hearing, Judge.
THE COURT: That's fine. All right. It's withdrawn. Okay. Thank you. (2/22/13 Tr. at 82-83; Docket No. 582.)
This motion to suppress, however, was not addressed in the Report and Recommendation. This Court will, therefore, remand the matter for consideration before the Magistrate Judge.
3. Defendant Ard objects to the Report on several grounds.
First, he contends that the government did not meet the sealing requirements of Title III. See 18 U.S.C. § 2518(8). The Report and Recommendation does not make any specific findings in this regard. This Court, however, finds that suppression is not warranted on this ground.
4. Section 2518(8) of Title 18 commands that "immediately upon the expiration of the period of the [wiretap] order, or extensions thereof,  recordings shall be made available to the judge issuing such order and sealed upon his directions." Compliance with this statute is a prerequisite to admissibility. Id. The Second Circuit has established that any delay over two days triggers a requirement that the Government provide a satisfactory explanation for the delay. United States v. Vazquez, 605 F.2d 1269, 1274 (2d Cir. 1979); see also United States v. Ojeda Rios, 495 U.S. 257, 262--65, 110 S. Ct. 1845, 109 L. Ed. 2d 224 (1990) (establishing "satisfactory explanation" requirement). This explanation should be furnished at the time recordings are submitted for sealing, United States v. Massino, 784 F.2d 153, 158 (2d Cir. 1986), but an explanation submitted at the time of a defendant's motion to suppress will be considered, United States v. Wong, 40 F.3d 1347, 1375 (2d Cir. 1994) (citing United States v. Pitera, 5 F.3d 624, 627 (2d Cir.1993)).
5. Here, the last pertinent recording occurred on the afternoon of March 11, 2011. (See Ex. F; Docket No. 524-4). The Assistant United States Attorney received the discs on March 15, 2013, and she scheduled the sealing with the Court on March 16, 2013. Ard contends that this "5-day" delay warrants total suppression.
This Court disagrees. 6. This Court signed the 30-day order authorizing the challenged wiretap on February 9, 2010. Interceptions began the next day. (See id.). Thus, the Government was authorized to conduct interceptions through and including Thursday, March 11, 2010. See 18 U.S.C. § 2518(5) ("[T]hirty-day period begins on the earlier of the day on which the investigative or law enforcement officer first begins to conduct an interception under the order or ten days after the order is entered."). As noted, the afternoon of March 11, 2010 marked the last interception recovered. According to the Government, the discs were then sent ...