H. KENNETH SCHROEDER, Jr., Magistrate Judge.
This case was referred to the Hon. Hugh B. Scott by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #2. Thereafter, Magistrate Judge Scott issued an Order of Recusal in the case as to all defendants (Dkt. #131) and Judge Arcara referred the case to the undersigned, in accordance with 28 U.S.C. § 636(b)(1), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #133.
The defendants, Eric J. Humphrey, Charles M. Humphrey, Jr., James Humphrey, Jr., John E. Humphrey and Anthony Taylor are charged in a one-count indictment with conspiracy to possess with intent to distribute and to distribute 5 kilograms or more of cocaine and to manufacture, possess with intent to distribute, and to distribute, 50 grams or more of cocaine base in violation of Title 21, United States Code, Sections 846. Dkt. # 1. The defendants each also face forfeiture allegations. Id. Defendants Charles M. Humphrey, Jr., John E. Humphrey, Eric J. Humphrey and Anthony Taylor have filed dispositive and non-dispositive motions. See Dkt. ##50 (Charles Humphrey), 57 (John E. Humphrey), 60 (Eric J. Humphrey), 69 (Charles Humphrey (supplemental motion), 113 (Anthony Taylor). The government filed responses to the instant motions. Dkt. ##61, 70. Oral argument was held before Magistrate Judge Hugh B. Scott on February 16, 2011 and March 16, 2011.
This Decision and Order will address defendant John E. Humphrey's nondispositive motions seeking severance, preservation of evidence and to join in the motions filed by co-defendants. Dkt. #57. This Court's Report, Recommendation and Order with respect to John E. Humphrey's motion to suppress the evidence seized from 39 Phyllis Avenue was filed separately.
By this request, defendant John Humphrey seeks severance from his codefendants. In support of this motion, defendant John Humphrey states, "John Humphrey's defense will be that he did not engage in any illegal activity relating to his co-defendants nor did he enter into any agreement to do so. As such, this defendant will be required to separate himself quite forcefully from his co-defendants' alleged criminal activities. In essence, John Humphrey's defense will be that he was not involved in his co-defendants' multiple wrongdoings." Dkt. #57, ¶11. A Decision and Order on defendant John Humphrey's motion to sever is left to the discretion of the District Judge to whom this case is assigned, District Judge Richard J. Arcara.
By this request, the defendant seeks an Order from this Court directing the government to "preserve and retain intact any evidence, tangible papers, reports, law enforcement agent notes, objects or other information relating in any way to the investigation which led to this indictment . . ." Dkt. #57, ¶13. In its response, the government states,
Dkt. #61, ¶¶6 and 8.
Although perhaps unnecessary, based on the representations made by counsel for the government concerning its acknowledgment of its obligation and its agreement to endeavor to maintain such materials, the express admonition of the Court of Appeals for the Second Circuit bears repeating in addressing this particular request of the defendant wherein the Court stated:
United States v. Buffalino, 576 F.2d 446, 449-50, (2d Cir.), cert. denied, 439 U.S. 928 (1978); see also United States v. Grammatikos, 633 F.2d 1013, 1019-20 (2d Cir. 1980); United States v. Miranda, 526 F.2d 1319 (2d Cir. 1975), cert. denied, 429 U.S. 821 (1976). Accordingly, the government is hereby directed to maintain and preserve all materials that are known by the government to exist, that constitute potential Jencks Act material in this case.
The defendant seeks to join in any motion filed by any of his codefendants. Dkt. #57, ¶17. This request is granted with the further directive and finding that the decision made by this Court as to each of the co-defendant's requests contained in the motion in which this defendant joins shall also be deemed to be the finding and Order of this Court as to the defendant herein.
Therefore, it is hereby
This Decision and Order be filed with the Clerk of Court.
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., Paterson-Leitch Co., Inc. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 (1st 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."