United States District Court, W.D. New York
DECISION AND ORDER
FRANK P. GERACI, JR. CHIEF JUDGE UNITED STATES DISTRICT COURT
26, 2015, the United States of America filed a two-count
indictment alleging that Defendant Aaron Rucker robbed a home
while using a firearm in violation of 18 U.S.C. §§
1951(a) and 924(c)(1)(A)(ii). ECF No. 1. The next
day, the case was referred to Magistrate Judge Jonathan W.
Feldman for pre-trial matters and dispositive motions. ECF
21, 2015, the United States filed a four-count, superseding
indictment alleging that Rucker conspired to violate the
Hobbs Act on November 4, 2014; Rucker attempted to violate
the Hobbs Act on October 8, 2014 and November 4, 2014; and
that he used a firearm during and in relation to a crime of
violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii).
ECF No. 8.
April 28, 2016, Rucker moved to dismiss the first three
counts of the indictment; moved to dismiss the entire
indictment for selective and vindictive prosecution; and
moved to suppress evidence seized from his bedroom,
identification testimony, and statements that he made. ECF
No. 49. Judge Feldman then held several hearings, including a
suppression hearing, and issued a report and recommendation
(“R&R”) recommending that the Court deny all
of Rucker's motions. ECF No. 115. Rucker then objected to
Judge Feldman's R&R. ECF No. 118. For the reasons
that follow, the Court accepts Judge Feldman's R&R in
part. Consequently, Rucker's motion to suppress evidence
seized from his bedroom is granted, and his remaining motions
to suppress and motions to dismiss the indictment are denied.
district court reviews those portions of an R&R to which
a party has timely objected de novo. Fed. R. Crim.
P. 59(b)(3). When a party does not object to a portion of an
R&R, or when the objections are conclusory, general, or
without legal support, a district court reviews those
portions for clear error. See United States v.
Preston, 635 F.Supp.2d 267, 269 (W.D.N.Y. 2009) (citing
Cullen v. United States, 194 F.3d 401, 405-07 (2d
Cir. 1999)); see also Fed. R. Crim. P. 59(b)(2);
Loc. R. Crim. P. 59(c)(2) (“Written objections . . .
shall specifically identify the portions of the proposed
findings and recommendations to which objection is made and
the basis for each objection, and shall be supported by legal
reviewing the R&R and the objections thereto, a district
court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” Fed. R. Crim. P. 59(b)(3).
makes two objections: (1) that Judge Feldman erred in denying
his motion to suppress evidence seized from his bedroom, and
(2) that Judge Feldman failed to address his request for a
hearing pursuant to Franks v. Delaware, 438 U.S. 154
(1978). Rucker's second objection, regarding the
Franks hearing, is simply a repackaged version of
his first objection. Rucker argues that Judge Feldman granted
a search warrant for his bedroom based on an improper
protective sweep of his house incident to his arrest. ECF No.
118 at 7-10. This argument matches the one Rucker makes in
support of his first objection-the protective sweep was
illegal, so all evidence seized from Rucker's bedroom
based on the subsequent search warrant should be suppressed.
ECF No. 118 at 3-7. Accordingly, the Court construes both
objections as a single objection to Judge Feldman's
recommendation that the Court deny Rucker's motion to
suppress the evidence seized from his bedroom.
because Rucker did not object to Judge Feldman's other
recommendations, the Court reviews them for clear error.
See Preston, 635 F.Supp.2d at 269. The Court has
reviewed Judge Feldman's recommendations regarding the
motions to dismiss three counts of the indictment, the whole
indictment, and the motions to suppress identification
testimony and Rucker's statements, and finds no clear
error. Consequently, the Court adopts those recommendations
and the motions are denied. The Court next considers
Rucker's objection regarding the motion to suppress the
evidence seized from Rucker's bedroom.
29, 2015, FBI Special Agent Jason Galle and other members of
the FBI's Buffalo Field Office SWAT team executed an
arrest warrant for Rucker at 784 Hudson Avenue, Rochester,
New York. See ECF No. 97 at 8. FBI Special Agent
Christopher Fiorito led the arrest team. Id. at 29.
The warrant authorized the arrest to begin at 6:00 a.m.
agents usually know how many people reside in the home at
which they are executing a search warrant, Agent Galle could
not recall this information for 784 Hudson Avenue.
Id. at 37-38. Agent Galle was also not aware of any
dangers in the house and did not participate ...