United States District Court, W.D. New York
DECISION AND ORDER
RICHARD J. ARCARA, District Judge.
Before the Court are: (1) objections by defendants Kasiem Williams, Jordan Hidalgo, Joseph Whitely, Ritchie Juarbe and Luis Medina to various Reports and Recommendations by Magistrate Judge H. Kenneth Schroeder, Jr.; (2) appeals by defendants Brittany Ground and Alejandro Navarro-Gonzalez to Decisions and Orders by Magistrate Judge Schroeder; and (3) defendant David Tirado's motion to preclude or limit expert testimony as to firearms. Also pending before the Court are various Reports and Recommendations to which no objections have been made.
As explained below, the findings and recommendations of the Magistrate Judge are adopted in their entirety, and defendants Navarro-Gonzalez and Brittany Grounds' appeals are denied. Defendant Tirado's motion to preclude or limit expert testimony is held in abeyance pending the Government's filing of a detailed written summary of any expert testimony it will seek to introduce at trial pursuant to Federal Rules of Evidence 702, 703 and 705.
A multi-count Superseding Indictment filed on May 24, 2012 alleges that individuals involved in Cheko's Crew (also referred to as the Puerto Rican Dynasty) and the Seventh Street Gang together formed a criminal organization whose members and associates engaged in drug dealing and various acts of violence including murder, attempted murder, robbery and assault. (Dkt. No. 87) Charges contained in the Superseding Indictment include racketeering conspiracy, murder and attempted murder in aid of racketeering, assault with a dangerous weapon in aid of racketeering, robbery, narcotics conspiracy and other drug-related offenses, and various charges relating to the use and discharge of firearms. Eighteen defendants were charged in the Superseding Indictment.
The matter was referred to Magistrate Judge H. Kenneth Schroeder, Jr. for supervision of all pretrial proceedings. A plethora of motions were made before the Magistrate Judge, and a number of evidentiary hearings and oral arguments were held. Magistrate Judge Schroeder then issued various Reports and Recommendations and Decisions and Orders as to pretrial issues. Objections and appeals by some defendants followed. As of the date of this Decision and Order, seven defendants in this case have entered into plea agreements with the Government. The Court's findings with respect to the remaining defendants' objections and appeals, and other outstanding Reports and Recommendations by the Magistrate Judge, are discussed below.
Discussion Kasiem Williams
Defendant Williams is charged with racketeering conspiracy, murder and attempted murder in aid of racketeering, assault in aid of racketeering, narcotics conspiracy, possession of firearms in furtherance of drug trafficking, and using and maintaining a premises for drug trafficking. Defendant Williams filed a motion to suppress various statements he made to law enforcement on multiple occasions. After conducting evidentiary hearings, Magistrate Judge Schroeder wrote a thorough, detailed, 42-page Report and Recommendation recommending that defendant Williams' motion to suppress be denied in its entirety. (Dkt. No. 378) Defendant filed objections, the Government filed a response, and the Court considered the matter submitted following oral argument.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon de novo review and after reviewing the submissions of the parties and hearing oral argument, the Court adopts the proposed findings of the Report and Recommendation.
The Second Circuit has instructed that where a Magistrate Judge conducts an evidentiary hearing and makes credibility findings on disputed issues of fact, the district court will ordinarily accept those credibility findings. See Carrion v. Smith, 549 F.3d 583, 588 (2d Cir. 2008) ("[A] district judge should normally not reject a proposed finding of a magistrate judge that rests on a credibility finding without having the witness testify before the judge.") ( quoting Cullen v. United States, 194 F.3d 401, 407 (2d Cir. 1999)).
This Court adopts the credibility findings of Magistrate Judge Schroeder, including his findings that defendant Williams' statements while in the hospital on July 10, 2009 were voluntary and that defendant was not in custody at that time. The Court adopts the Magistrate Judge's credibility findings as to the interview of defendant on July 8, 2010 including his findings that: (1) when defendant initially arrived at the police station and made statements he was not in custody; (2) that after his arrest defendant was advised of his Miranda rights; and (3) that at best defendant made a "limited invocation" of his right to counsel. This Court also concurs with Magistrate Judge Schroeder's finding that there is no basis to suppress any statements from the proffer session as a result of ineffective assistance of counsel.
Accordingly, for the reasons set forth in Magistrate Judge Schroeder's Report and Recommendation, defendant Williams' motion to suppress evidence is denied in its entirety.
Defendant Williams also moved to dismiss Count 1 of the Superseding Indictment, charging racketeering conspiracy, on the basis that Count 1 does not properly allege a pattern of racketeering activity. Magistrate Judge Schroeder issued a thorough Report and Recommendation recommending denial of the motion to dismiss. (Dkt. No. 382) No objections by defendant Williams were filed. For the reasons set forth in ...