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 (collectively, "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,, in connection with the
operation of the Kingsmen Motorcycle Club ("KMC").
21, 2017, United States Magistrate Judge Michael J. Roemer,
to whom various pretrial matters had been referred pursuant
to 28 U.S.C. § 636(b)(1), issued a Report and
Recommendation with respect to motions to suppress that had
been filed by defendants David Pirk ("Pirk") and
Timothy Enix ("Enix"). (Dkt. 686). Both Pirk and
Enix moved to suppress evidence seized from their residences
on May 12, 2016, upon execution of search warrants obtained
one day earlier. (Dkt. 392 (Enix's motion); Dkt. 434
(Pirk's motion)). In addition, Pirk and Enix moved to
suppress statements they both allegedly made to law
enforcement on December 11, 2014, as well as statements Pirk
allegedly made on December 12, 2014, and Enix allegedly made
on March 22, 2016. (Id.).
receiving various briefing from Pirk, Enix, and the
Government (see Dkt. 453 (Gov't Opp. to Enix
motion); Dkt. 483 (Gov't Opp. to Pirk motion); Dkt. 478
(Enix reply); Dkt. 566 (Gov't post-hearing brief); Dkt.
567 (Enix post-hearing brief); Dkt. 588 (Enix Resp. to
Gov't post-hearing brief); Dkt. 589 (Gov't Resp. to
Enix post-hearing brief); Dkt. 612 (Enix Supp. Resp.); Dkt.
630 (Gov't Reply to Enix Supp. Resp.)), and conducting a
suppression hearing and holding oral argument, Magistrate
Judge Roemer issued his Report and Recommendation that
Pirk's and Enix's motions be denied. (Dkt. 686).
August 28, 2017, Enix timely filed objections to the Report
and Recommendation, specifically challenging Magistrate Judge
Roemer's recommendations concerning the motions to
suppress evidence seized from the search of Enix's
residence on May 12, 2016, and the statements he allegedly
made to law enforcement on March 22, 2016. (Dkt. 763). On
August 29, 2017, Pirk moved to join in the first argument
presented in Enix's objections to the Report and
Recommendation (Dkt. 765), and the Court granted that motion
(Dkt. 766). Thus, Pirk and Enix do not challenge the Report
and Recommendation's findings with respect to the motion
to suppress the statements allegedly made by Pirk and Enix to
law enforcement on December 11, 2014, and Pirk's alleged
statements the following day. On September 11, 2017, the
Government filed its Response to Defendants' Objections
(Dkt. 771), and Enix filed a Reply Memorandum in further
support of his objections on September 15, 2017 (Dkt. 786).
Oral argument was held before the undersigned on September
21, 2017, at which time the Court reserved decision. (Dkt.
Court reviews Enix's and Pirk's objections under a
de novo standard. Fed. R. Crim. P. 59(b)(3); see
also 28 U.S.C. § 636(b)(1) ("A judge of the
court shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations
to which objection is made."); United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir. 1997) (requiring a
district court to make de novo determinations to the
extent that a party makes specific objections to a magistrate
judge's findings). Of course, the Court is not required
to review de novo those portions of a report and
recommendation to which objections were not filed. Male
Juvenile, 121 F.3d at 38 ("We have adopted the rule
that failure to object timely to a magistrate judge's
report may operate as a waiver of any further judicial review
of the decision, as long as the parties receive clear notice
of the consequences of their failure to object.");
see also Molefe v. KLM Royal Dutch Airlines, 602
F.Supp.2d 485, 487 (S.D.N.Y. 2009) (to trigger the de
novo review standard, objections to a report "must
be specific and clearly aimed at particular findings in the
magistrate judge's proposal").
Court has conducted a thorough review of the Report and
Recommendation, the parties' filings before this Court
and Magistrate Judge Roemer, and the transcript of the
suppression hearing. In addition, it has considered the
arguments advanced by counsel at the oral argument held
before the undersigned on September 21, 2017. After a de
novo review of the issues for which objections were
filed, and after a thorough consideration of all the issues
raised in Enix's and Pirk's suppression motions, the
Court hereby accepts and adopts the Report and Recommendation
(Dkt. 686) and overrules Enix's and Pirk's objections
(Dkt. 763; Dkt. 765). Accordingly, for the reasons set forth
below and in the Report and Recommendation, Enix's and
Pirk's motions to suppress (Dkt. 392; Dkt. 434) are
CAUSE FOR ISSUANCE OF WARRANTS TO SEARCH
cause to search a place exists if the issuing judge finds a
'fair probability that contraband or evidence of a crime
will be found in a particular place' and a federal court
must apply a 'totality-of-the-circumstances analysis'
in pursuing this inquiry." United States v.
Ponce, 947 F.2d 646, 650 (2d Cir. 1991) (quoting
Illinois v. Gates, 462 U.S. 213, 238(1983)).
[T]he duty of a court reviewing the validity of a search
warrant is "simply to ensure that the magistrate had a
'substantial basis for . . . conclud[ing]' that
probable cause existed." A search warrant issued by a
neutral and detached magistrate is entitled to substantial
deference, and "doubts should be resolved in favor of
upholding the warrant."
United States v. Rosa, 11 ¶ F.3d 315, 326 (2d
Cir. 1993) (citations omitted).
United States Magistrate Judge Phillip R. Lammens of the
Middle District of Florida signed search warrants for
Enix's and Pirk's residences based upon an affidavit
sworn to by FBI Task Force Officer ("TFO")
Christopher Dipasquale, who testified at the suppression
hearing before Magistrate Judge Roemer. The Report and
Recommendation determined that the warrant affidavit from TFO
Dipasquale provided a substantial basis for Magistrate Judge
Lammens to conclude that probable cause existed for the
search of Enix's and Pirk's residences.
objections, which Pirk joined, Enix challenges the conclusion
that Magistrate Judge Lammens was not misled by the purported
failure to disclose information concerning a ...