*1 This 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 upon dispositive motions.

The defendant, Shawn Woods (“the defendant”), is charged in a third superseding indictment, along with a number of co-defendants, with having violated Title 18 U.S.C. §§ 1962(d); 924(c)(1)(A)(i) and 2, and Title 21 U.S.C. § 846 (Counts 1-4); Title 18 U.S.C. §§ 1959(a)(3) and 2; Title 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(B) and 841(b)(1)(C); Title 21 U.S.C. § 856(a)(1) and Title 18 U.S.C. § 2; Title 18 U.S.C. §§ 924(a)(1)(A)(i) and 2. (Counts 11-14). Dkt. #84.

The defendant has filed motions seeking to suppress: the use of evidence obtained from his Facebook and Snapchat accounts pursuant to search warrants. Dkt. #262; the use of evidence seized from his residence at 974 Jefferson Avenue, Buffalo, New York pursuant to a search warrant for that premises. Dkt. #261; the use of statements made by him to law enforcement personnel after he was arrested by local authorities. Dkt. #179; DNA evidence taken from him by FBI agents when he was taken into federal custody for purposes of his court appearance. Dkt. #301. He also filed motions seeking to dismiss Count 1, Counts 1 an and 3 and Count 13 set forth in the Third Superseding Indictment. Dkt. #179. Lastly, the defendant seeks dismissal of the Third Superseding Indictment claiming that his constitutional right to a speedy trial has been denied. Dkt.# 179.

The government has filed its opposition to the defendant’s motions. Dkt. #s 211, 274, 311.

A search warrant authorizing the search of the defendant’s Facebook and Snapchat accounts and the seizure of evidence from those accounts was issued by Magistrate Judge Roemer on September 28, 2018. (18-M-5243).

The defendant argues that the search warrant in question was invalid because the search warrant was “insufficiently particular because [it] allowed the government to engage in indiscriminate, general searches of vast electronically stored records” and therefore, the evidence seized should be suppressed from use at trial of the defendant. Dkt. #262, p. 4, ¶ 9. The defendant also claims that the search warrant of September 28, 2018 “is insufficiently particular and overbroad because it contained no temporal limitation whatsoever.” Dkt. #262, p. 4, ¶ 10. Lastly, the defendant asserts that because the search warrant did not “contain search protocols or minimization procedures aimed at restraining the government from searching through reams of electronically stored data that have little bearing on the crimes charged” it should be “render[ed] constitutionally infirm.” Dkt. # 262, pp. 4-5. ¶ 11. These arguments of the defendant are rejected for the reasons that follow.

The Fourth Amendment to the United States Constitution states:

*2 This Constitutional provision only requires that there be probable cause for the issuance of the search warrant and that the warrant “particularly describ[e] the place to be searched and the persons or things to be seized.” It does not contain a requirement that there be some form of temporal limitation relating to the “things to be seized” as advocated by the defendant. Nor does Rule 41(e) of the Federal Rules of Criminal Procedure require such a limitation. Rule 41(e)(2)(B) expressly authorizes “the seizure of electronic storage media or the seizure or copying of electronically stored information.”

The search warrant of September 28, 2018 addressed to Facebook and Snapchat expressly contained references to Attachments A1 and A2 which “particularly” identified the Facebook and Snapchat accounts relating to the defendant and stated that Attachments A1 and A2 were attached to the search warrants in question as well as being incorporated by reference. See 18-M-5243. Dkt. #s 4 and 7. These were the “particular” properties to be searched by Facebook and Snapchat and the data was to be retrieved by those organizations from those designated places or accounts.

The Facebook search warrant also had attached to it, “Attachment B,” which was also incorporated by reference into the search warrant. The Snapchat search warrant also had attached to it, “Attachment C” which was also incorporated by reference into the search warrant. See 18-M-5243, Dkt. #s 4 and 7. Both Attachments B and C described with “particularity” the data or information that was to be disclosed to law enforcement personnel pursuant to said search warrants by Facebook and Snapchat respectively. “Attachments B and C” also “particularly” described what could be seized by law enforcement personnel pursuant to the search warrants with specific reference and limitation to that which “constitute[d] fruits, evidence and instrumentalities of violations of Title 18, United States Code, Sections 2, 3, 4, 371, 924(c)(1), 924(j), 922(a)(1), 922(a)(5), 1959, 1962(c-d) and Title 21 United States Code, Sections 841, 846 and 856 from the inception of each account through the present, including information pertaining to” specifically listed descriptions.

In addressing the “particularity” requirement for search warrants, the United States Supreme Court has acknowledged that this requirement can be satisfied by cross referencing other documents and incorporating those documents into the search warrant by “us[ing] appropriate words of incorporation.” Groh v. Ramirez, 540 U.S. 551, 557-558 (2004); United States v. Water, 463 F. Supp.2d 348, 362 (W.D.N.Y. 2006). The attachments, A1, A2, B and C, also set forth sufficient examples of the type of records to be seized. The specific reference to the statutes that are the subject of the investigation operates as a limitation on what the agents can search for and what can be seized in that context. This limitation provided sufficient “particularity” in the search warrants so as to meet Fourth Amendment requirements. See United States v. Ulbricht, 858 F.3d 71, 101 (2d Cir. 2017), cert. denied 138 S.Ct. 2708 (2018); United States v. George, 975 F.2d 72, 76 (2d Cir. 1992); United States v. Young, 745 F.2d 733, 758 (2d Cir. 1984), cert. denied 470 U.S. 1084 (1985); United States v. Dunloy, 584 F.2d 6, 8 (2d Cir. 1978).

The defendant’s assertion that the search warrants of September 28, 2018 are invalid because they were overbroad is also rejected. Admittedly, modern technology being what it is, electronic searches present legitimate concerns. As the Court of Appeals for the Second Circuit has stated:

United States v. Galpin, 720 F.3d 436 (2d Cir. 2013); United States v. Ulbricht, 858 F.3d 71 (2d Cir. 2017).

Notwithstanding this “serious risk,” the Second Circuit has expressly held that:

United States v. Ulbricht, 858 F.3d 71, 102 (2d Cir. 2017); abrogated on other grounds, United States v. Zodhjates, 901 F.3d 137 (2d Cir. 2018).

The descriptive or illustrative list of things to be searched for and seized in Attachments B and C to the warrants sufficiently limit what is to be seized by the agents in conducting their search and, therefore, the search warrants are not overly broad as claimed by the defendant.

United States v. Riley, 906 F.2d 841,845-846 (2d Cir. 1990); see also Andresen v. Maryland, 427 U.S. 463, 482 (1976).

Lastly, the defendant’s claim that the search warrants of September 28, 2018 were invalid because they lacked a protocol to be used in conducting the search of electronically stored data is totally without legal merit. The United State Supreme Court has expressly held that “[i]t is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant – subject of course to general Fourth Amendment protection ‘against unreasonable searches and seizures’.” Dalia v. United States, 441 U.S. 238, 257 (1979).

*4 Therefore, based on the forgoing, it is recommended that the defendant’s motion to suppress the use of the Facebook and Snapchat evidence seized pursuant to the search warrant of September 28, 2018 (18-M-5243) be in all respects denied.

The defendant seeks to have evidence seized from 974 Jefferson Avenue, Buffalo, New York on February 1, 2017 pursuant to a search warrant issued by the Hon. Craig D. Hannah, Buffalo City Court Judge, on February 1, 2017. The defendant filed his affidavit establishing an interest in the premises searched thereby giving him legal standing to bring this motion. Dkt. #179-1. A supplemental affidavit of Justin Ginter, Esq., attorney for the defendant herein, was filed in further support of the defendant’s motion to suppress on May 28, 2019. Dkt. #261. In this affidavit of counsel, sworn to May 28, 2019, the defense questions whether there was valid probable cause for the issuance of the search warrant in question. Dkt. #261.

This Court conducted an in camera review the proceedings conducted by Judge Hannah on February 1, 2017 for purposes of determining whether there was sufficient probable cause for the issuance of the search warrant authorizing the search of 974 Jefferson Avenue, Buffalo, New York on February 1, 2017. This in camera review consisted of a review of the sworn affidavit/application of Deputy Sheriff Granville, Judge Hannah’s handwritten notes of his sworn interview of a confidential informant conducted on February 1, 2017 and the recording of the proceedings conducted by Judge Hannah on February 1, 2017. The sworn testimony of the confidential informant as contained in the recording of the interview and Judge Hannah’s handwritten notes clearly establish that the informant knew the defendant and that he/she had engaged in the purchase of drugs from the defendant at 974 Jefferson and that while at such premises, the informant also observed drugs in the premises. Deputy Sheriff Granville stated under oath that he knew the confidential informant, having worked with him/her in the past and found him/her to be reliable.

The fact that the confidential informant appeared in person before Judge Hannah and testified under oath increased his/her reliability because he/she “runs the greater risk that he/[she] may be held accountable if his/[her] information proves false. United States v. Gagnon, 373 F.3d 230, 236 2d Cir. 2004), quoting United States v. Salazar, 945 F.2d 47, 50-51 (2d Cir. 1991); United States v. Steppello, 664 F.3d 359, 365 (2d Cir. 2011).

“In determining what constitutes probable cause to support a search warrant when the warrant is based upon information obtained through the use of a confidential informant, courts assess the information by examining the ‘totality of circumstances’ bearing upon its reliability.” United States v. Smith, 9 F.3d 1007 (2d Cir. 1993), citing Illinois v. Gates, 462 U.S. 213, 230-31 (1984) and Rivera v. United States, 928 F.2d 592, 602 (2d Cir. 1991). “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238. “A magistrate’s determination of probable cause should be paid great deference by reviewing courts.” Smith, 9 F.3d at 1012. Thus, the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Gates, 462 U.S. at 238-39.

*5 I find that there was sufficient probable cause established for the issuance of the search warrant by Judge Hannah on February 1, 2017 and therefore recommend that defendant’s motion seeking suppression of the evidence seized pursuant to that warrant be in all respects denied.

The defendant has filed a motion wherein he seeks to suppress the use of statements made by him to law enforcement personnel by claiming that his “answers were not voluntarily given nor did he knowingly waive his rights as afforded him.” Dkt. #179, p. 49, ¶ 149. However, this allegation is not set forth in an affidavit by the defendant but rather is a legal argument or claim made by defense counsel in the motion. Dkt. #179, p. 49. Defense counsel also requests “that a hearing be conducted to determine whether the statements made by [the defendant] were knowingly and voluntarily provided.” Dkt. #179, p. 49, ¶ 151.

An argument supported by “[a]iry generalities, conclusory assertions” and inadmissible evidence is insufficient to create a genuine issue of fact necessitating an evidentiary hearing. U.S. v Aiello, 814 F.2d 109, 113-14 (2d Cir.1987); U.S. v. Solano, 300 Fed. Appx. 83, 85 (2d Cir. 2008); See also United States v. Pena, 961 F.2d 333, 339 (2d Cir. 1992).

In order to warrant a suppression hearing, the defendant must demonstrate a specific factual dispute that can be resolved by a hearing. See United States v. Mathurin, 148 F.3d 68 (2d Cir. 1998) (evidentiary hearing required where defendant averred that he was never given Miranda warnings); United States v. Richardson, 837 F. Supp. 570 (S.D.N.Y. 1993) (evidentiary hearing not required where defendant failed to make specific factual allegations of illegality based upon personal knowledge but defense counsel merely alleged that defendant did not knowingly waive his rights before answering questions); United States v. Ahmad, 992 F. Supp. 682, 685 (S.D.N.Y. 1998) (affidavit of defense counsel seeking suppression of custodial statements for failure to provide Miranda warnings insufficient to warrant evidentiary hearing or suppression); United States v. Caruso, 684 F. Supp. 84, 87 (S.D.N.Y. 1988) (“without a supporting affidavit of someone with personal knowledge of the underlying facts, the court need not resolve factual disputes that may be presented by the moving papers.”). Indeed, the defendant’s papers must raise a “sufficiently definite, specific, detailed, and nonconjectural” factual basis for the motion in order to require a hearing. United States v. Pena, 961 F.2d 333, 339 (2d Cir. 1992); United States v. Gillette, 383 F.2d 843, 848 (2d Cir. 1967). As defendant has failed to raise a factual basis for his motion to suppress statements, it is recommended that this aspect of his motion be denied.

In his initial omnibus motion (Dkt. #179) the defendant made a motion to suppress the use of DNA evidence obtained by law enforcement officials on February 1, 2017 from a soda pop can which the defendant had drunk from. Dkt. #179, pp. 48-49. However, the government has stated that it has not used and will not use the DNA evidence obtained on February 1, 2017 for any comparisons relating to the defendant. Dkt. #211, p. 48. As a result, this motion of the defendant is moot and therefore it is recommended that it be denied on that basis.

*6 On June 1, 2017 the defendant was “arrested by federal authorities for charges relating to the current indictment” and “as part of arrest processing, the FBI obtained the defendant’s DNA sample through a buccal swab” which was “then used to compare against the various items of evidence recovered at 974 Jefferson Avenue on February 1, 2017,” Dkt. #211, p. 48. However, the defendant argues that this taking of the buccal sample by federal authorities on June 1, 2017 was unlawful because “the government in effect used [this Court’s] order to effectuate an unconstitutional search of [the defendant]. Dkt. #301, p. 4, ¶ 12. This claim of the defendant is rejected as being totally without legal merit.

The defendant was arrested on New York State charges on February 1, 2017 and was ordered detained on those charges. “On May 30, 2017, the government filed a sealed indictment charging the defendant with violation of federal law.” Dkt. #311, p. 1.

As a result, this Court issued a Writ of Habeas Corpus ad Prosequendum (Dkt. #3) on May 31, 2017 for purposes of arresting the defendant and bringing him before this Court for arraignment on the indictment. An arrest warrant for the arrest of the defendant was issued by the Clerk of the Court on June 1, 2017 based on the sealed indictment of May 30, 2017. (Dkt. #6). The arrest warrant for the defendant was executed on June 1, 2017 by agents of the FBI. After the defendant was taken into custody by FBI agents, he was processed in accordance with established arrest procedures which included the taking of a buccal swab from the defendant’s interior cheek. The return of the sealed indictment against the defendant provided legal probable cause for the issuance of the arrest warrant and the federal arrest of the defendant pursuant to that arrest warrant. Once taken into legal federal custody, the agents had a right, as part of the booking process, to take the DNA sample from the defendant.

The United States Supreme Court has ruled that police officers may take a DNA sample of an individual where probable cause existed to arrest that individual for a serious crime without any further showing of reasonable suspicion or probable cause relating to the need for the DNA sample. Maryland v. King, 569 U.S. 435, (2013); see also, United States v. Eldridge, No. 09CR329A, 2013 WL2635207 (Jun. 12, 2013). In comparing the taking of DNA to a search incident to arrest, the Supreme Court stated: “[w]hen probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving those interests.” King at 450. In addition, the Supreme Court also analogized the taking of a DNA sample to the taking of fingerprints, stating:

Id. at 459.

Therefore, it is recommended that defendant’s motion to suppress the use of the DNA evidence obtained from him on June 1, 2018 be in all respects denied.

The defendant alleges that Count 1 set forth in the Third Superseding Indictment is defective and should be dismissed because it “essentially parrots RICO, alleging without more that the enterprise was an ‘ongoing organization whose members function as a continuing unit for a common purpose of achieving the objectives of the enterprise,’ and fails to provide any factual basis or allegations to support the sweeping statutory claim.” Dkt. #179, p. 5, ¶ 15. The defendant further argues that Count 1 “similarly fails to specify the composition of the criminal enterprise” and “any framework for making or carrying out decisions.” Dkt. #179, p. 5, ¶ 16. He also asserts that the charge in Count 1 is “improperly vague and overly broad with respect to identifying the composition of the criminal enterprise” and that it fails “to establish the requisite pattern of racketeering.” Dkt. #179, p. 6, ¶s 17, 19-29.

*7 When considering a motion to dismiss a count in the indictment, the Court may assume the truth of the facts described in the indictment. United States v. Mango, 199 F.3d 85, 89 (2d Cir. 1999). In resolving questions concerning the sufficiency of an indictment or charging document, the United States Supreme Court has stated:

United States v. Resendiz-Ponce, 549 U.S. 102, 108 (2007); see also United States v. Russell, 369 U.S. 749, 763-764 (1962).

The Second Circuit Court of Appeals reiterated this principle wherein it stated:

United States v. Bout, 731 F.3d 233, 240-241 (2d Cir. 2013); United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir.), cert. denied, 504 U.S. 926 (1992).

The arguments put forth by the defendant are more appropriately raised in a post-trial motion based on the sufficiency of the evidence since the government must prove the existence of an agreement to violate RICO’s substantive provisions. United States v. Benevento, 836 F.2d 60, 73 (2d Cir. 1987); United States v. Applins, 637 F.3d 59, 75 (2d Cir.), cert. denied by Pierce v. United States, 565 U.S. 960 (2011). At this stage of the proceedings, the Court need not look beyond the face of the indictment to determine the sufficiency of the charge under attack by the defendant. Accordingly, for the foregoing reasons, it is recommended that defendant’s motion to dismiss Count 1 of the Third Superseding Indictment be in all respects denied.

The defendant argues that “because Count 1 encompasses the conduct alleged in Count 3 [of the Third Superseding Indictment], the indictment is multiplicitous” and “as such it violates [the defendant’s] Fifth Amendment Right against double jeopardy and consequently Counts 1 and 3 must be dismissed.” Dkt. #179, p. 9, ¶ 32.

The United States Supreme Court enunciated the rule or test to be applied in making a determination of whether an indictment contains multiplicitous counts as follows:

Blockburger v. United States, 284 U.S. 299, 304 (1932).

The Court of Appeals for the Second Circuit has reiterated this rule or test in United States v. Chacko, 169 F.3d, 140, 146 (1999), wherein it stated:

(citations omitted) (emphasis added).

Count 1 of the Third Superseding Indictment charges the defendant with having violated Title 18 U.S.C. § 1962(d) which states:

Count 3 of the Third Superseding Indictment charges the defendant with having violated Title 21 U.S.C. § 846 which states:

In order to establish a violation of 18 U.S.C. § 1962(d) (RICO conspiracy), the “government [is] required to prove the existence of an agreement to violate RICO’s substantive provisions” as set forth in 18 U.S.C. 1962(c). United States v. Benevento, 836 F.2d 60, 73 (2d Cir. 1987); United States v. Applins, 637 F.3d 59, 75 (2d Cir.), cert. denied by Pierce v. United States, 565 U.S. 960 (2011). More specifically, Count 1 of the Third Superseding Indictment expressly charges the defendant and others with conspiring “to violate Title 18 United States Code, Section 1962(c), that is, to conduct and participate, directly and indirectly, in the conduct of the affairs of the enterprise through a pattern of racketeering activity as defined in Title 18, United States Code, Section 1961(1) through (5) ....” Dkt. #84, Count 1.

*9 In order to establish a violation of Title 21 U.S.C. § 846, the government need only prove that the defendant conspired and agreed with others “to possess with intent to distribute, and to distribute” certain controlled substances” in violation of Title 21 United States Code, Sections 841(a)(1), 841(b)(1)(A), 841(b)(1)(B), 841(b)(1)(C), and 841(b)(1)(D).” Dkt. #84, Count 3.

As the United States Supreme Court stated in Braverman v. United States, 317 U.S. 49, 53 (1942), “the gist of the crime of conspiracy ... is the agreement ... to commit one or more unlawful acts.” Also, there can be “multiple agreements to commit separate crimes” which would “constitute multiple conspiracies.” United States v. Broce, 488 U.S. 563, 571 (1989); see also United States v. Jones, 455 F.3d 134, 147 (2d Cir. 2006); cert. denied 549 U.S. 1231 (2007).

Each conspiracy statute that the defendant is charged with having violated, i.e., Counts 1 and 3 of the Third Superseding Indictment, contains an element not contained in the other. Each statute requires proof of a fact that the other does not and therefore the Blockburger test is satisfied. United States v. Garavito-Garcia, 827 F.3d 242, 250 (2d Cir. 2016). The charge in Count 1 requires that the government establish that the defendant, along with the other named defendants, were “employed by and associated with the CBL/BFL gang” which was a “criminal enterprise engaged in, and the activities of which affected, interstate and foreign commerce” and that they conspired and agreed “to conduct the affairs of the enterprise through a pattern of racketeering activity as defined in Title 18 United States Code, Section 1961(1) through (5). Count 3 of the Third Superseding Indictment does not require proof of a “criminal enterprise” of which the defendant was a member; nor does it require proof that the activities of the conspiratorial group were conducted through “a pattern of racketeering activity.” All that need be established under Count 3 of the Third Superseding Indictment is that the defendant agreed and conspired with others to possess with intent to distribute and to distribute narcotics in violation of Title 21 U.S.C. Section 846. As a result, Counts 1 and 3 of the Third Superseding Indictment are not multiplicitous and it is recommended that defendant’s motion to dismiss these counts be denied.

Count 13 of the Third Superseding Indictment charges the defendant and a co-defendant with “knowingly, intentionally, and unlawfully us[ing] and maintain[ing] a place, that is, the premises at 974 Jefferson Avenue, Upper Apartment, Buffalo, New York, for the purpose of manufacturing, distributing and using heroin, butyryl fentanyl, U-47700, and furanyl fentanyl, all Schedule I controlled substances, and fentanyl, a Schedule II controlled substance,” all in violation of Title 21 U.S.C. § 856(a)(1) and Title 18 U.S.C. § 2.

The defendant argues that because “Count 13 utterly fails to set forth a plain, concise and definite written statement of the essential facts that allege that [the defendant] maintained a drug involved premises at 974 Jefferson Avenue,” this count must be dismissed. Dkt. #179, pp. 9-10, ¶ 38.

“[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117 (1974); United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir.), cert. denied, 504 U.S. 926 (1992).

*10 “Further, an indictment need only track the language of the statute, and if necessary to apprise the defendant of the nature of the accusation against him with ‘reasonable certainty,’ state the time and place of the alleged offense in approximate terms.” Russell v. United States, 369 U.S. 749, 765-66 (1962).

The charge in Count 13 adequately advises the defendant of the nature of the charge and expressly tracks the language of the statute. Therefore, it is recommended that his motion to dismiss this count be denied.

The defendant asserts that he has been denied his constitutional right to a speedy trial because “the government [has taken] an unreasonable amount of time prosecuting its case against [the defendant] and his co-defendants.” Dkt. #179, pp. 50-51, ¶s 154-160.

On May 30, 2017, a multi-count indictment was filed against the defendant charging him with having violated Title 18 U.S.C. § 924(c)(1)(A)(i) and Title 21 U.S.C. §§ 841(a)(1) and 856(a)(1). Dkt. #1. The defendant was arraigned on June 1, 2017 and a scheduling order was put in place and the time for speedy trial purposes was excluded to August 4, 2017. Dkt. #5. On July 31, 2017, the defendant filed a motion seeking an extension of forty-five (45) days from the August 4, 2017 date for purposes of filing pretrial motions and agreed to exclusion of that time for speedy trial purposes. Dkt. #7, p. 2, ¶s 2, 3, 4, 6. This application was granted and an amended scheduling order was issued extending the deadline for filing all pretrial motions to September 22, 2017 and the time from July 31 to September 22, 2017 was excluded for speedy trial purposes. Dkt. #9.

On August 31, 2017, defendant’s assigned counsel filed a motion seeking to be relieved as defendant’s attorney because of a conflict of interest that was determined by reviewing discovery material that had been provided to the defendant by the government. Dkt. #10. Oral argument on the motion was heard on September 11, 2017 at which time this Court granted the motion and relieved assigned counsel and appointed new counsel for the defendant (minute entry of September 11, 2017). Dkt. #13. This Court issued a Second Amended Scheduling Order to accommodate newly assigned counsel with a new motion deadline date of November 15, 2017 and exclusion of time for speedy trial purposes to November 15, 2017.

On November 15, 2017 the defendant filed an omnibus discovery motion along with a suppression motion. Dkt. #15. The government filed its response to these motions on November 29, 2017 and oral argument on the motions was held by this Court on December 14, 2017 and defendant’s motions were denied on that date and the Court directed the parties to obtain a trial date from the trial judge to whom this case had been assigned. Dkt. #18. On December 21, 2017, a status conference was held by the trial judge and a trial date of May 8, 2018 was scheduled and the time between December 21, 2017 to May 8, 2018 was excluded for speedy trial purposes. Dkt. #22.

On February 6, 2018, a notice of appearance on behalf of the defendant was filed by attorney Robert Ross Fogg. Dkt. #25. A status conference was held on February 13, 2018 by the trial judge at which time defendant’s assigned counsel was relieved and defendant’s retained counsel, Robert Ross Fogg, was designated attorney of record for the defendant. Dkt. #28. A pretrial order was filed by the trial judge on February 14, 2018 setting the same trial date of May 8, 2018. Dkt. #29.

*11 On February 20, 2018 a Superseding Indictment against the defendant was filed (Dkt. #33) and the defendant was arraigned on this Superseding Indictment on February 22, 2018. Dkt. #35.

On February 27, 2018, a status conference was held by this Court wherein the government advised that defendant’s attorney, Robert Ross Fogg, had a possible conflict in the representation of the defendant. As a result, this Court scheduled a Curcio[1] hearing on the conflict issue for March 8, 2018 and the time for speedy trial purposes was excluded until that date (minute entry of February 27, 2018). Dkt. #37.

On March 8, 2018, a Curcio hearing was held by this Court, and during the proceedings, the government advised that it anticipated filing a Second Superseding Indictment against the defendant and a newly named co-defendant which would cause a per se conflict of interest for attorney Fogg in the representation of the defendant (minute entry of March 8, 2018). On March 8, 2018, the trial judge to whom this case is assigned issued an Order excluding the time from December 21, 2017 to May 8, 2018 for purposes of the speedy trial time requirements. Dkt. #38.

On March 27, 2018, a Second Superseding Indictment was filed against the defendant and five other co-defendants herein. Dkt. #39. On March 30, 2018, the defendant was arraigned on this Second Superseding Indictment, and at that time, Robert Ross Fogg advised the Court that he now had a conflict of interest that prevented him from continuing in his representation of the defendant. This Court relieved Robert Ross Fogg from further representation of the defendant in this case and the defendant requested time to retain a new attorney, which request was granted. (Minute entry of March 30, 3018). Proceedings were then adjourned until April 3, 2018 at which time the issue of attorney representation of the defendant and some of the co-defendants was discussed. This Court was advised on April 3, 2018 that the defendant had retained new counsel, i.e., Justin Ginter.

On April 3, 2018, this Court issued a Scheduling Order requiring, among other things, that the defendant and the co-defendants file all pretrial motions, both dispositive and non-dispositive, by May 31, 2018 and that the time from April 3, to May 31, 2018 was excluded for purposes of the Speedy Trial Act requirements. Dkt. #44 (Minute Entry dated April 3, 2018).

On May 30, 2018, the defendant, by his counsel, filed a motion seeking more time within which to file all pretrial motions. Dkt. #58. This motion was granted and the defendant and all of the co-defendants were given until July 2, 2018 for purposes of filing all pretrial motions and an Amended Scheduling Order was issued by this Court on May 30, 2018. Dkt. #s 58, 59, 60.

On July 2, 2018, counsel for the defendant filed an omnibus discovery motion along with motions to suppress evidence and motions to dismiss. Dkt. #75.

Because counsel for the co-defendant Rice was relieved from further representation of that defendant on June 12, 2018 and new counsel was assigned to represent this defendant on that date, this Court granted an extension of time to the co-defendant Rice for purposes of filing all pretrial motions. Dkt. #s 77, 78. An Amended Scheduling Order was issued by this Court wherein the time for speedy trial purposes was excluded as to the defendant and the co-defendants until August 3, 2018. Dkt. #79.

*12 On August 28, 2018, a Third Superseding Indictment naming the defendant and original co-defendants along with seven (7) new co-defendants was filed. Dkt. #84. The defendant and the newly named co-defendants were arraigned on this Third Superseding Indictment on August 30, 3018. The previously named co-defendants were arraigned on this Third Superseding Indictment on September 4, 2018 and a new Scheduling Order was issued by this Court wherein the time for speedy trial purposes was excluded from September 4 to November 9, 2018, that being the deadline date for the filing of all defense motions, both dispositive and non-dispositive. (Minute Entry dated September 4, 2018). Dkt. #93.

A status conference was held by this Court on November 6, 2018 to discuss issues relating to production of discovery materials and defense counsels’ request for additional time within which to file pretrial motions. It was then agreed that an extension of time was warranted and that an Amended Scheduling Order be issued by the Court.

On November 6, 2018, an Amended Scheduling Order was issued wherein the deadline date for filing all pretrial motions was extended to January 31, 2019 and the time between November 9, 2018 and January 31, 2019 was excluded for purposes of speedy trial time requirements. Dkt. #146.

On November 16, 2018, a pretrial conference was held before the trial judge to whom this case has been assigned, and a trial date of January 6, 2020 was established for the trial of all of the defendants and the time from November 16, 2018 to January 6, 2020 was excluded for purposes of the Speedy Trial Act requirements. Dkt. #149.

On January 29, 2019, defense counsel sought an extension of the deadline date for the filing of pretrial motions for the reasons stated in the moving papers. Dkt. #167. This motion was granted by this Court and a Second Amended Scheduling Order was issued wherein the deadline date for the filing of all pretrial motions was extended to March 1, 2019. Dkt. #170. Motions were subsequently filed by the defendant and some of the co-defendants. The government filed its responses to those defense motions on March 29, 2019. Dkt. #s 203, 204, 205, 206, 207, 208, 209, 210, 211 and 212.

On April 10, 2019, this Court heard oral argument on all defense motions and issued its decisions as to all of the defendants’ omnibus discovery motions. Dkt. #221.

On May 16, 2019, this Court, upon the request of the defendant and co-defendants herein, granted an extension of time to the defendant and the co-defendants for purposes of filing affidavits in support of their motions to suppress evidence as well as other motions. Dkt. #240. Thereafter, the defendant and co-defendants filed motions seeking additional extensions of time within which to file affidavits and additional motions. Dkt. #s 250, 252. These requests were granted and the filing deadline was extended to May 28, 2019. Dkt. #256. The defendants completed their filings May 28, 2019 and the government filed responses to same on June 7, 2019. Dkt. #s 273, 274, 275. Oral argument on the motions was held by this Court on June 27, 2019.

The defendant requested permission to file a supplement to his motion to suppress on June 27, 2019, which request was granted. (Minute entry of June 27, 2019). On July 5, 2019, defense counsel for the defendant filed an affidavit in support of the defendant’s motion seeking to suppress use of DNA evidence taken from the defendant by FBI agents. Dkt. #301.

The government has filed its opposition to this supplemental motion on July 19, 2019. Dkt. 311.

I have taken great pains in setting forth the procedural history in this case only because that history is warranted in supporting my decision and recommendation that the defendant’s speedy trial rights have not been denied.

*13 The Sixth Amendment to the United States Constitution guarantees that “the accused shall enjoy the right to a speedy and public trial”. U.S. Const. amend. VI. This right has been described as “amorphous, slippery, and necessarily relative. It neither prohibits all delays, nor establishes a strict time limit between the announcement of a charge and the commencement of trial.” United States v. Ray, 578 F.3d 184, 191 (2d Cir. 2009), cert. denied, 559 U.S. 1107 (2010); Vermont v. Billon, 556 U.S. 81, 88 (2009).

The language of the United States Supreme Court in Doggett v. United States, 505 U.S. 647 (1992) is most applicable to the factual circumstances in the case at hand and therefore, brevity will be sacrificed intentionally by setting it forth at length:

Id. at 654, 656-57.

The Court of Appeals for the Second Circuit has stated:

United States v. Cain, 671 F.3d 271, 296 (2d Cir. 2012); see also United States v. Black, 918 F.3d 243 (2d Cir. 2019).

I have considered the Barker four factors as follows:

The Length of Delay and Reasons for the Delay – Factors 1 and 2

As evidenced by the Third Superseding Indictment in this case, the charges involve multiple defendants, a substantial number of charges and allegations including murder involving the complexities of a racketeering case.

The procedural history set forth above establishes that the delays occurring after the filing of the original indictment were caused by the defendant’s request for an extension of time within which to file pretrial motions and the subsequent recusal of his assigned attorney and the assignment of new counsel. The filing of the First Superseding Indictment resulted in the creation of an issue of conflict on the part of the defendant’s newly retained counsel which required this Court to resolve the matter in accordance with the procedure established in United States v. Curcio, 680 F.2d 881 (2d Cir. 1982), thus resulting in further legitimate delay. The filing of the Second Superseding Indictment not only resulted in an actual conflict for defendant’s retained counsel, but also added five new defendants to the case thereby requiring the Court to issue an amended scheduling order for the filing of pretrial motions by those newly added defendants. The time granted to those co-defendants was automatically excluded not only to those defendants but to the defendant herein as well. United States v. Vasquez, 918 F.2d 329, 334-35 (2d Cir. 1990); United States v. Cephas, 937 F.2d 816, 822 (2d Cir. 1991), cert. denied, 502 U.S. 1037 (1992). Further, it became necessary for this Court to grant time to the defendant for the purpose of retaining new counsel. Upon the retaining of new counsel by the defendant, this Court issued an Amended Scheduling Order for the filing of all pretrial motions by the defendant and the newly named co-defendants.

On May 30, 2018, the defendant, by his counsel, filed a motion seeking more time within which to file pretrial motions which was granted and all the defendants were given until July 2, 2018 to file all pretrial motions. Since this delay was due to the request of the defendant, the time for speedy trial purposes was properly excluded. 18 U.S.C. § 3161(h)(1)(D). However, because counsel for the co-defendant Rice had to be relieved from further representation of that defendant on June 12, 2018 and new counsel assigned for that co-defendant, it became necessary for this Court to issue an Amended Scheduling Order granting an extension of time to this co-defendant for purposes of filing all pretrial motions (Dkt. #s 77, 78, 79) thereby extending the motion deadline date to August 3, 2018. On August 28, 2018, the Third Superseding Indictment was filed naming not only the defendant and the other five co-defendants, it also charged seven new co-defendants. Dkt. #84. As a result, it became necessary to arraign the defendant and the newly named seven defendants on August 30, 2018 and to issue a new scheduling order for the filing of all pretrial motions which excluded the time for speedy trial purposes until November 9, 2018. Dkt. #93.

*15 A status conference was held by this Court to discuss issues relating to the production of discovery materials and the requests made by all defense counsel, including the defendant’s attorney, for additional time within which to file pretrial motions. This request for additional time was granted and all of the defendants were given until January 31, 2019 for purposes of filing all pretrial motions. In the meantime, the trial judge in this case held a conference with all of the defense attorneys at which time the defendant and his attorney, along with the co-defendants and their counsel, agreed to the setting of a trial date of January 6, 2020 and the exclusion of time for speedy trial purposes to that date. Dkt. #s 149, 198.

On January 29, 2019 in response to a request made by one of the co-defendants for additional time within which to file pretrial motions, an Amended Scheduling Order was issued by this Court, and the defendants were given until March 1, 2019 to file all pretrial motions. The defendant filed his omnibus motion on March 1, 2019 and the government filed its response to same on March 29, 2019. Dkt. #s 179 and 211 respectively. On May 16, 2019 the defendant requested additional time to file motions and defendant’s affidavit relating to suppression of evidence. Dkt. #236. This request was granted and a deadline date of May 24, 2019 for the filing of such motions and affidavit was established. Dkt. #240. On May 23, 2019, the defendant requested additional time within which to file his affidavit and motions. Dkt. #250. This request was granted and the defendant was given until May 28, 2019 for such filing. Dkt. #256. The defendant filed additional motions to suppress evidence on May 28, 2019. Dkt. #s 260, 261, 262. On June 27, 2019 the defendant requested permission and additional time within which to file a motion seeking suppression of certain DNA evidence which request was granted. The defendant filed this supplemental motion on July 5, 2019 and the government filed its response to same on July 19, 2019. Dkt. #s 301 and 311 respectively.

As the procedural history of this case establishes, a substantial part of the delays experienced in this case were brought about by numerous requests by defense counsel, including the defendant’s attorney, for extensions of time within which to file pretrial motions. Certainly, the government should not be held accountable for this total period of delays created by the defense. Delay was caused due to the conflicts of attorneys representing the defendant and another defendant which necessitated the removal of those attorneys from further representation of defendants and starting afresh with new counsel. Delays for this reason are not to be attributed to the government.

The total period of delay from the first indictment against the defendant filed on May 30, 2017 to the scheduled trial date of January 6, 2020 is approximately 31 months. The delay period from the First Superseding Indictment filed on February 20, 2018 to the scheduled trial date of January 6, 2020 is approximately 22 months. The delay period from the filing of the Second Superseding Indictment on March 27, 2018 to the scheduled trial date of January 6, 2020 is approximately 21 months, and the period of delay from the filing of the Third Superseding Indictment on August 28, 2018 is approximately 16 months. Thus, the total delay in this case is either no different or considerably shorter than those in which the Second Circuit Court of Appeals found no speedy trial violation. See United States v. McGrath, 622 F.2d 36 (2d Cir.1980) (24 months); United States v. Lane, 561 F.2d 1075 (2d Cir.1977) (58 months); United States v. Cyphers, 556 F.2d 630 (2d Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2937, 53 L.Ed.2d 1070 (1977) (33 months); United States v. Mejias, 552 F.2d 435 (2d Cir.), cert. denied, 434 U.S. 847, 98 S.Ct. 154, 54 L.Ed.2d 115 (1977) (21 months); United States v. McQuillan, 525 F.2d 813 (2d Cir.1975) (26 months); United States v. Lasker, 481 F.2d 229 (2d Cir.1973), cert. denied, 415 U.S. 975, 94 S.Ct. 1560, 39 L.Ed.2d 871 (1974) (2 years); United States v. Infanti, 474 F.2d 522 (2d Cir.1973) (28 months); United States v. Fasanaro, 471 F.2d 717 (2d Cir. 1973) (over 4 years); United States v. Saglimbene, 471 F.2d 16 (2d Cir.), cert. denied, 411 U.S. 966, 96 S.Ct. 2146, 36 L.Ed.2d 686 (1973) (6 years); United States v. Schwartz, 464 F.2d 499 (2d Cir.), cert. denied, 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302 (1972) (41//2 years); see also Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (5 years); Flowers v. Warden, Connecticut Correctional Institution, Somers, 853 F.2d 131 (2d Cir. 1988).

*16 Admittedly, the government caused some of the delay in this case by reason of its piecemeal prosecution by filing three superseding indictments after having charged the defendant in the original indictment filed on May 30, 2017. However, the filing of superseding indictments does not automatically or per se establish a Sixth Amendment speedy trial violation. The government had a right to continue its investigation of the alleged criminal activities of the defendant and others which resulted in the return of the three superseding indictments. This continued investigation and presentations to a federal grand jury were in the public interest. “The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.” Beavers v. Haubert, 198 U.S. 77, 87 (1905); United States v. Ewell, 383 U.S. 116, 120 (1966) (“A requirement of unreasonable speed would have a deleterious effect ... upon the ability of society to protect itself”); United States v. Ghailani, 733 F.3d 29, 47-48 (2d Cir. 2013).

In continuing its investigation into the alleged criminal activities of the defendant and other co-defendants, there was only a delay of eight months and twenty days between the initial indictment against the defendant and the First Superseding Indictment; a delay of approximately nine months between the initial indictment against the defendant and the Second Superseding Indictment and only one month between the First Superseding Indictment and Second Superseding Indictment; and a four month delay between the Second Superseding Indictment and the Third Superseding Indictment. Those periods of delay between the indictments are not so substantial as to conclude that the government was less than diligent or was negligent in the prosecution of this case so as to warrant a dismissal of the charges on Sixth Amendment speedy trial grounds.

Defendant’s Assertion of His Right to a Speedy Trial – Factor 3

The defendant did not assert his claim that his “constitutional right to a speedy trial” was being violated until March 1, 2019. Dkt. #179, p. 50. However, his prior and subsequent motions wherein and whereby he sought extensions of time within which to file motions and papers belie his desire to enforce his right to a speedy trial. Each time an extension of time was granted to the defendant, he expressly agreed that the extended time should be excluded for purposes of the speedy trial requirements. When the parties appeared before the Hon. Lawrence J. Vilardo on November 16, 2018, the trial judge to whom this case has been assigned, for purposes of setting a trial date, the defendant, by his counsel, along with the co-defendants, agreed to a trial date of January 6, 2020 and expressly stated on the record that the time up to January 6, 2020 should be excluded for purposes of the speedy trial requirements. Dkt. #198, pp. 16-17.

Based on the totality of circumstances as established in the procedural history of this case outlined above, the defendant’s singular assertion of a denial of his constitutional right to a speedy trial in an omnibus motion filed on March 1, 2019 (Dkt. #179) is lame at best and certainly cannot be considered an aggressive assertion of such right. Rayborn v. Scully, 858 F.2d 84, 93 (2d Cir. 1988), cert. denied, 488 U.S. 1032 (1989); United States v. Cain, 671 F.3d 271 (2d Cir. 2012). As a result, there is no basis for attributing substantial weight to this factor.

Has the Defendant Been Prejudiced – Factor 4

The defendant fails to set forth any factual basis in his motion to dismiss the charges which would establish or at least indicate that he has been prejudiced by the delay in bringing him to trial. He has not submitted an affidavit in support of his claim and merely relies on the assertions made by his attorney in the motion papers wherein he states:

*17 Dkt. #199, pp. 50-51, ¶ 160.

This Court issued an order on July 2, 2018 releasing the defendant on bail and the defendant was released after posting security as a condition of his release. As a result, the defendant cannot claim he suffered prejudice by being incarcerated for a lengthy period of time before being brought to trial. The defendant has failed to establish that he suffered any form of prejudice by reason of trial delay that would warrant dismissal of the charges against him.

In balancing the Barker factors in the context of the procedural history of this case, I find that there has not been a violation of the defendant’s rights under the Sixth Amendment for a speedy trial and therefore recommend that his motion to dismiss the charges against him be in all respects denied.

It is hereby ORDERED pursuant to 28 U.S.C. § 636(b)(1) that:

This Report, Recommendation and Order be filed with the Clerk of the Court.

ANY 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 the above statute, Fed.R.Crim.P. 58(g)(2) and Local Rule 58.2.

The 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., Patterson-Leitch Co., Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988). Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Judge’s Order. Thomas v. Arn, 474 U.S. 140 (1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir. 1988).

The parties are reminded that, pursuant to Rule 58.2 of the Local Rules 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 Rule 58.2, or with the similar provisions of Rule 58.2 (concerning objections to a Magistrate Judge’s Report, Recommendation and Order), may result in the District Judge’s refusal to consider the objection.