DECISION AND ORDER
RICHARD J. ARCARA, District Judge.
Before the Court are defendants' objections to Magistrate Judge Hugh B. Scott's Report and Recommendation and an appeal from his Decision and Order (Dkt. Nos. 216 and 217) in this multi-defendant case involving allegations of, inter alia, racketeering, racketeering conspiracy, murder in aid of racketeering, conspiracy to distribute controlled substances, kidnaping in aid of racketeering, and unlawful use and possession of firearms.
For the foregoing reasons, and for the reasons set forth by Magistrate Judge Scott, the Court adopts the findings and conclusions set forth in the Report and Recommendation and Decision and Order.
Defendants Thamud Eldridge, Kashika Speed, Kevin Allen, and Galen Rose are charged with various offenses including racketeering, racketeering conspiracy, murder in aid of racketeering, conspiracy to distribute controlled substances, possession of firearms in furtherance of drug trafficking crimes, violent crime in aid of racketeering-kidnaping, Hobbs Act robbery/conspiracy, use, carry and brandish of a firearm during and in relation to and in furtherance of crimes of violence, use, carry and discharge of a firearm during and in relation to crimes of violence causing death, and felon in possession of a firearm. (Dkt. No. 164)
In sum, it is alleged that defendants were members of a criminal organization that engaged in distribution of cocaine, cocaine base, marijuana and heroin and also committed acts of violence in furtherance of their trafficking enterprise, including murder, robbery and extortion. The organization operated principally in the East Side of Buffalo, New York. It is alleged that defendants robbed, murdered and attempted to rob and murder other individuals involved in drug trafficking and that defendants carried, brandished and discharged firearms in furtherance of these activities. The murder counts involve the deaths of Thedrus Laster ("Laster") and Sam Jones ("Jones") who were killed, during separate incidents, in April 2005.
The matter was referred to Magistrate Judge Scott for supervision of pretrial proceedings. Defendants Eldridge, Speed, Rose and Allen made various pre-trial motions. The Government moved to compel defendant Eldridge to appear in a line-up. The Magistrate Judge conducted evidentiary hearings on June 21, 2012 and March 28, 2013 and the parties had an opportunity to file post hearing briefs. On June 12, 2013, the Magistrate Judge issued a Report and Recommendation deferring the admissibility of the witness identification to the District Court, but otherwise denying the pre-trial relief sought by defendants. (Dkt. No. 216) On that same day, the Magistrate Judge issued a Decision and Order ordering, among other things, that defendant Eldridge appear in a line-up (Dkt. No. 217) Defendants have filed objections to various portions of the Report and Recommendation and the Decision and Order (Dkt. Nos. 223, 224 and 231) and the Government filed responses (Dkt. Nos. 226, 227, and 237). Oral argument was held on September 9, 2013 and September 11, 2013.
With respect to the Magistrate's recommendations on the dispositive motions, this Court makes a de novo determination of those portions of the Report and Recommendation to which objections have been made pursuant to 28 U.S.C. § 636(b)(1). With respect to the Magistrate's orders on the nondispositive motions, this Court considers only whether the Magistrate's determinations are clearly erroneous or contrary to law pursuant to 28 U.S.C. Section §636(b)(1)(A).
Defendant Eldridge objects to Magistrate Judge Scott's recommendation to deny his motion to dismiss counts 1, 2, 5, 7, 10, 12, 13 and 15 of the superseding indictment based upon the Government's failure to plead, with necessary factual sufficiency, the existence of a criminal enterprise as required under Rule 12(b)(3) of the Federal Rules of Criminal Procedure. Defendant contends that the superseding indictment fails to plead the existence of an entity separate and distinct from defendants, that it fails to plead a relationship between the defendants involved, and that it fails to allege an "on-going" enterprise.
In United States v. Boyle, the Supreme Court held that "an enterprise includes any union or group or individuals associated in fact" and that RICO reaches "a group of persons associated together for a common purpose of engaging in a course of conduct." 556 U.S. 938 (2009) (such enterprise is proved "by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function in a continuing unit"). An "association in fact" must have three structural features: a purpose, relationship among those associated with the purpose, and longevity sufficient to permit these associates to pursue the enterprise's purpose. Boyle, 556 U.S. at 945-946.
As Magistrate Judge Scott correctly notes, the superseding indictment sufficiently alleges the existence of a criminal enterprise. The indictment alleges that from in or around 2003 and continuing through December 2005, defendants Eldridge, Speed and Allen were members of an enterprise whose purpose was to obtain things of money and value through murder, extortion, robbery and drug trafficking. Another purpose was to protect the power, territory and profits of the enterprise through violence and intimidation. The indictment alleges that defendants Eldridge, Speed and Allen were a coalition who participated in and directed others to carry out unlawful activities in furtherance of the enterprise's goals, and recruited others to assist them in carrying out the ...