United States District Court, W.D. New York
LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE
Brandon Washington is charged with one count of conspiring to
possess with intent to distribute and to distribute five
kilograms or more of cocaine, in violation of 21 U.S.C.
§ 846; two counts of distributing cocaine, in violation
of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); one
count of possessing cocaine with the intent to distribute it,
in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A); and seven counts of structuring the deposit and
withdrawal of currency to evade reporting requirements, in
violation of 31 U.S.C. §§ 5324(a)(1), 5324(a)(3),
and 5322(a) and 18 U.S.C. § 2. See Docket Item
13, 2016, Washington filed omnibus motions, including a
motion to suppress “electronic eavesdrop and derivative
evidence” and a request for a hearing under Franks
v. Delaware, 438 U.S. 154 (1978). Docket Item 94. On May
18, 2016, the government responded. See Docket Item
92. Magistrate Judge H. Kenneth Schroeder, Jr., heard oral
argument on July 1, 2016. With Judge Schroeder's
permission, and after reviewing additional Title III
affidavits, on October 21, 2016, counsel for Washington filed
a supplemental affirmation in further support of the motion
to suppress and request for a Franks hearing.
See Docket Item 105. The government then filed a
supplemental response on November 9, 2016, Docket Item 106,
and Judge Schroeder heard further oral argument on November
14, 2016. On October 19, 2017, Judge Schroeder issued a
Report, Recommendation and Order (“R&R”),
recommending the denial of the motion to suppress and finding
that a Franks hearing was not necessary.
See Docket Item 145.
support of its motion to suppress, the defendant advanced
three legal arguments, each of which Judge Schroeder
the defendant argued that the December 10, 2013 eavesdrop
application failed to establish necessity for electronic
surveillance. Relying on United States v. Torres,
901 F.2d 205 (2d Cir.), cert. denied 498 U.S. 906
(1990), Judge Schroeder concluded that the sixty-five page
affidavit of U.S. Drug Enforcement Administration Special
Agent Shane Nastoff described the history of the
investigation in sufficient (and indeed great) detail,
including the normal investigative techniques that had been
used but failed. Judge Schroeder accorded appropriate
deference to United States District Judge William M.
Skretny's review and acceptance of Special Agent
Nastoff's December 10, 2013 affidavit, as well as Judge
Skretny's decision to authorize surveillance.
Specifically, Judge Schroeder concluded that Judge Skretny
had “properly found that conventional investigative
techniques had been exhausted and that alternatives to wire
interception would be unlikely to succeed or would be too
dangerous.” Docket Item 145, at 8.
the defendant argued that the failure of the government to
disclose prior Title III orders to Judge Skretny in the
December 10, 2013 application deprived Judge Skretny of
information concerning the defendant and violated the
requirements of 18 U.S.C. § 2518(1)(e). Judge Schroeder
concluded that because neither the March 9, 2007 intercept
order nor the April 16, 2007 order concerned the defendant or
his co-defendant, there was no legal requirement that the
government disclose those orders in its December 10, 2013
application. See Docket Item 145, at 12. Moreover,
while the May 18, 2007 intercept order was not disclosed in
the December 10, 2013 application presented to Judge Skretny,
Judge Schroeder concluded that suppression was not warranted
for two reasons. First, he noted that the June 15, 2007
order-which expressly described and incorporated parts of the
May 18, 2007 order-had been disclosed. For that reason, he
found that Judge Skretny was given a “historical
thread” that would have led him to the prior May 18,
2007 intercept order had he needed or wanted such
information. Id. at 17. Judge Schroeder also found
the failure to disclose the May 18 order was inadvertent,
noting that the government immediately informed Judge Skretny
of the omission when the government recognized it and that
the historical thread provided by disclosure of the June 15
order belied any claim of an intentional omission.
Id. at 20.
Judge Schroeder found that because the omission of the May
18, 2007 intercept order was not material to the finding of
probable cause or the necessity for the December 10, 2013
order, the defendant had failed to meet the requirements for
a Franks hearing. Id. at 28.
deadline for filing objections to the R&R was extended at
Washington's request until January 19, 2018. See
Docket Item 157. But Washington still did not object to the
R&R, and the time to object has now expired. For that
reason, Washington has waived his right to have the Report
and Recommendation reviewed. See Fed. R. Crim. P.
59(b)(2) (“Failure to object in accordance with this
rule waives a party's right to review.”); see
also Docket Item 145 at 29.
in its discretion, this Court has carefully reviewed the
R&R (Docket Item 145). Based on that review and the
absence of any objection, and for the reasons stated in the
R&R, this Court adopts the R&R in its ...