United States District Court, W.D. New York
REPORT, RECOMMENDATION, AND ORDER
KENNETH SCHROEDER, JR., United States Magistrate Judge
case was referred to the undersigned by the Hon. Lawrence J.
Vilardo, in accordance with 28 U.S.C. § 636(b)(1), for
all pretrial matters and to hear and report on dispositive
motions. Dkt. No. 55.
Rashawn Crule is charged in the Second Superseding Indictment
with conspiring to distribute heroin, fentanyl, and cocaine
in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(a), and 841(b)(1)(C); conspiring to possess with
intent to distribute heroin, fentanyl, cocaine, and cocaine
base in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(c), and 841(b)(1)(B); maintaining a drug involved
premises in violation of 21 U.S.C. § 856(a)(1) and 18
U.S.C. § 2; possession of a firearm in furtherance of
drug trafficking crimes in violation of 18 U.S.C.
§924(c)(1)(i); and being a felon in possession of a
firearm in violation of 18 U.S.C. § 924(a)(2). Dkt. No.
April 25, 2017, Mr. Crule filed a motion seeking to suppress
“statements allegedly made by defendant.” Dkt.
No. 191, p. 23. The motion fails to identify which
statements he seeks to suppress or the circumstances under
which they were made. Generally, he contends that he has been
provided with “two typed police reports of a statement
allegedly made by the defendant, Rashawn Crule.” Dkt.
No. 191, p. 23. Without citing any facts or law, defense
counsel argues generally that “[u]pon information and
belief, ” the statements were “involuntary in
violation of Mr. Crule's right against
self-incrimination, taken prior to the proper administration
of adequate Miranda warnings; were taken in the absence of a
knowing, voluntary and/or intelligent waiver [of] Mr.
Crule's rights, including the right to counsel prior to
questioning; and were otherwise in violation of Mr.
Crule's rights under the United States
Constitution.” Dkt. No. 191, p. 23.
part, the government contends that Mr. Crule “has not
particularized what evidence he seeks to suppress . . . [, ]
has not provided any affidavit of fact, ” and
therefore, his motion to suppress should be denied. Dkt. No.
287, pp. 16-17.
defendant seeking to suppress evidence bears the burden of
showing that disputed issues of material fact exist.
United States v. Pena, 961 F.2d 333, 338 (2d
Cir.1992). I find that defendant's suppression motion
falls far short of the “sufficiently definite, specific
and non-conjectural” statement which would necessitate
an evidentiary hearing. United States v. Watson, 404
F.3d 163, 167 (2d Cir. 2005); United States v. Pena,
961 F.2d 333, 339 (2d Cir. 1992) (internal citations
omitted). Mr. Crule has not submitted an affidavit - other
than that of his attorney - which sets forth the facts under
which defendant was questioned. An attorney affidavit
containing no factual details is insufficient to raise any
dispute as to whether Mr. Crule was Mirandized, questioned,
coerced into making a statement, or denied his right to
counsel. See United States v. Gillette, 383 F.2d
843, 848 (2d Cir. 1967) (holding that an attorney affidavit
that does not allege personal knowledge on the part of a
defendant's attorney does not raise a dispute as to a
factual issue which requires a hearing). For these reasons, I
find that no hearing is warranted and recommend that Mr.
Crule's motion to suppress be denied.
foregoing reasons, it is RECOMMENDED that defendant's
motion to suppress (Dkt. No. 191) be DENIED.
it is hereby ORDERED pursuant to 28 U.S.C.
§ 636(b)(1) that:
Report, Recommendation, and Order be filed with the Clerk of
OBJECTIONS to this Report, Recommendation and Order
must be filed with the Clerk of this Court within fourteen
(14) days after receipt of a copy of this Report,
Recommendation and Order in accordance with Federal Rule of
Criminal Procedure 59(b)(2) and Local Rule of Criminal
parties are reminded that, pursuant to Rule 59 of the Local
Rules of Criminal Procedure for the Western District of New
York, “written objections . . . shall specifically
identify the portions of the proposed findings and
recommendations to which objection is made and the basis for
such objection, and shall be supported by legal
authority.” Failure to comply with the
provisions of Local Rule 59 may result in the District
Judge's refusal to consider the objection.
district judge will ordinarily refuse to consider de
novo, arguments, case law and/or evidentiary material
which could have been, but were not presented to the
magistrate judge in the first instance. See, e.g.,
Paterson-Leitch Co., Inc. v. Mass. Mun. Wholesale Elec.
Co., 840 F.2d 985 (1st Cir. 1988). Local Rule 59(c)(3)
mandates that “[a]ny party filing objections to a
Magistrate Judge's order or recommended disposition must
include with the objections to the District Judge a written
statement either certifying that the objections do not raise
new legal/factual arguments, or identifying the new arguments
and explaining why they were not raised to the Magistrate