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United States v. Pirk

United States District Court, W.D. New York

November 9, 2017



          Elizabeth A. Wolford, United States District Judge.


         The above-captioned matter involves 12 remaining defendants[1] (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").

         On July 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.).

         After 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).

         On 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. 800).

         This 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").

         The 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 denied.


         "[P]robable 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).

         Here, 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.

         In his objections, which Pirk joined, Enix challenges the conclusion that Magistrate Judge Lammens was not misled by the purported failure to disclose information concerning a ...

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