United States District Court, W.D. New York
DECISION AND ORDER
Elizabeth A. Wolford United States District Judge
above-captioned matter involves 12 remaining
defendants named in a 46-count Second Superseding
Indictment (Dkt. 33) ("Indictment") returned on
March 16, 2016, alleging various crimes, including a
conspiracy in violation of the Racketeer Influenced and
Corrupt Organizations Act, 18 U.S.C. §§ 1961 et
seq. ("RICO"), in connection with the
operation of the Kingsmen Motorcycle Club ("KMC").
pending before the Court are the appeals of Defendants David
Pirk ("Pirk"), Thomas Scanlon
("Scanlon"), and Sean Mclndoo ("Mclndoo")
from Magistrate Judge Michael J. Roemer's Decision and
Order (Dkt. 568) regarding non-dispositive pretrial motions.
For the reasons discussed below, the Court denies the
appeals, except to the extent that the appeals by Scanlon and
Mclndoo challenge Magistrate Judge Roemer's decision to
deny the unsealing of the search warrant affidavit, on which
the Court reserves decision and schedules oral argument for
August 16, 2017, to immediately follow the status conference
at 11:00 A.M. on that date.
Court initially referred all pretrial matters to Magistrate
Judge Michael J. Roemer, pursuant to 28 U.S.C. §§
636(b)(1)(A) and (B). (Dkt. 35). In an effort to promote the
expeditious.handling of the pretrial motions, the undersigned
subsequently terminated the referral to Magistrate Judge
Roemer of many of the pretrial motions, including motions to
dismiss, for bills of particulars, and for severance. (Dkt.
446; Dkt. 473; Dkt. 534). Magistrate Judge Roemer agreed to
decide all non-dispositive discovery motions and issue a
report and recommendation on each suppression motion. (Dkt.
December 7, 2016, Scanlon filed an omnibus pretrial motion,
requesting, inter alia, the unsealing of the search
warrant affidavit submitted in support of search warrants
executed at the residence of co-defendant Jack Wood and six
KMC clubhouses. (Dkt. 385 at 33-37). On January 10, 2017, the
Government responded in opposition to Scanlon's motion.
(Dkt. 437). On February 3, 2017, Scanlon filed a reply. (Dkt.
December 7, 2016, Mclndoo filed an omnibus pretrial motion.
(Dkt. 383). On January 11, 2017, he moved to join in the
motions of his co-defendants (including Pirk and
Scanlon) to unseal the search warrant affidavit.
(Dkt. 438). On January 20, 2017, the Government responded in
opposition to Mclndoo's motion for discovery. (Dkt. 454).
Mclndoo replied on February 3, 2017, (Dkt. 475), and the
Government filed an additional response in opposition to the
remainder of his pretrial motions on February 10, 2017. (Dkt.
January 9, 2017, Pirk filed his omnibus pretrial motion,
requesting, inter alia, disclosure of Brady
material arising from the Government's prior
investigation of the Chosen Few, a rival motorcycle club,
from 2006 to 2008. (Dkt. 434 at ¶¶ 127-39). On
February 6, 2017, the Government filed a response in
opposition to Pirk's motion. (Dkt. 483 at 35-38). On
March 22, 2017, Pirk filed a supplemental Brady
request concerning the Chosen Few motorcycle club
investigation. (Dkt. 543). On March 31, 2017, the Government
filed a response in opposition to Pirk's supplemental
motion. (Dkt. 550).
argument concerning the non-dispositive discovery motions
filed by Pirk, Scanlon, and Mclndoo was held before
Magistrate Judge Roemer on March 17, 2017. (Dkt. 536). On
April 25, 2017, Magistrate Judge Roemer issued a Decision and
Order resolving Defendants' non-dispositive discovery
motions. (Dkt. 568).
10, 2017, this Court issued a Text Order requiring any
appeals of Magistrate Judge Roemer's Decision and Order
to be filed by May 30, 2017. (Dkt. 583). On May 30, 2017,
Pirk and Scanlon each timely filed an appeal of Magistrate
Judge Roemer's Decision and Order. (Dkt. 614 (Pirk); Dkt.
615 (Scanlon)). On May 31, 2017, Mclndoo filed his appeal.
(Dkt. 616). The Government filed its memoranda in opposition
to the appeals on June 28, 2017. (Dkt. 649 (Scanlon Opp.);
Dkt. 650 (Pirk Opp.); Dkt. 651 (Mclndoo Opp.)). Scanlon filed
a reply in further support of his appeal on July 14, 2017
(Dkt. 675), followed by a notice of supplemental authority on
July 19, 2017 (Dkt. 677). The Government filed a response to
the supplemental authority on July 20, 2017, as well as a
motion to strike the supplemental authority, which the Court
denied. (Dkt. 683; Dkt. 687). Mclndoo filed a reply on July
25, 2017. (Dkt. 694).
Defendants appeal to this Court from a non-dispositive
Decision and Order issued by Magistrate Judge Roemer, in
order to warrant reversal by this Court, they must
demonstrate that the decision is "clearly erroneous or
contrary to law." 28 U.S.C. § 636(b)(1)(A).
'"A finding is clearly erroneous when although there
is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.'" United States v.
Feneziani, No. 05-CR-290E, 2007 WL 1613630, at *1
(W.D.N.Y. June 1, 2007) (quoting Garcia v. Teitler,
AA3 F.3d 202, 211 (2d Cir. 2006)). "This standard
is highly deferential, imposes a heavy burden on the
objecting party, and only permits reversal where the
magistrate judge abused his discretion." Centro De
La Comunidad Hispana De Locust Valley v. Town of
Oyster Bay, 954 F.Supp.2d 127, 139 (E.D.N.Y. 2013)
(quotations omitted); see also S.E.C. v. Verdiramo,
890 F.Supp.2d 257, 266 (S.D.N.Y. 2011) ("The clearly
erroneous standard is highly deferential, and magistrate
judges are afforded broad discretion in resolving
non-dispositive disputes. . . ." (quotation omitted)).
Pirk's Objection to the Denial of ...