United States v. Thompson, 1:18-CR-00126 EAW

UNITED STATES OF AMERICA, v. TITUS THOMPSON, Defendant.

1:18-CR-00126 EAW

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

September 19, 2019

DECISION AND ORDER

I. INTRODUCTION

Before the Court are objections filed by defendant Titus Thompson ("Defendant") (Dkt. 99) to a Report, Recommendation and Order (Dkt. 92), recommending denial of Defendant's motion to suppress physical evidence seized upon execution of a search warrant on or about May 18, 2018, at a two-family residence located at 89 Parkridge Avenue in Buffalo, New York. For the reasons set forth below, the Court will accept the untimely arguments and affidavit submitted on behalf of Defendant. Considering the untimely submissions, the Court concludes that Defendant has failed to meet the standard for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). However, because outstanding issues remain as set forth herein, the Court continues to reserve decision on the motion to suppress and sets a status conference for September 25, 2019, at 12:45 PM, at the United States Courthouse in Buffalo, New York.

II. FACTUAL AND PROCEDURAL BACKGROUND

Defendant stands accused by way of a Superseding Indictment returned on October 11, 2018, with the following five counts: (1) conspiracy to commit firearms offenses in violation of 18 U.S.C. § 371; (2) unlawfully dealing in firearms in violation of 18 U.S.C. §§ 922(a)(1)(A), 923(a) and 924(a)(1)(D); (3) felon in possession of firearms and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); (4) using and maintaining a drug-involved premises in violation of 21 U.S.C. § 856(a)(1); and (5) possession of firearms in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c)(1)(a)(i). (Dkt. 31). The Superseding Indictment charged a total of ten defendants.¹ The undersigned referred all pretrial matters in the case to United States Magistrate Judge H. Kenneth Schroeder, Jr., pursuant to 28 U.S.C. § 636(b)(1)(A)-(B). (Dkt. 4).

According to a minute entry from the arraignment of Defendant on the Superseding Indictment before Judge Schroeder on October 17, 2018, Defendant's counsel advised that he did not intend to file any pretrial motions other than a motion for severance. Judge Schroeder issued a pretrial scheduling order for all defendants on October 24, 2018, setting December 14, 2018, as the deadline to file pretrial motions. (Dkt. 39). An Amended Scheduling Order was issued for all defendants on December 11, 2018, adjourning the deadline to file pretrial motions to January 18, 2019. (Dkt. 49).

Despite the representations at the arraignment before Judge Schroeder, on January 18, 2019, Defendant filed omnibus pretrial motions. (Dkt. 64). Among the relief identified by Defendant was suppression of evidence seized pursuant to the execution of a search warrant on or about May 18, 2018, at 89 Parkridge Avenue, Buffalo, New York. (Id. at 1). However, Defendant simply made the following conclusory statement: "defendant Titus Thompson respectfully reserves his right to challenge the search warrant, the veracity of its confidential informant and the execution thereof at a later date."² (Id. at 3). Defendant specifically did not seek a severance. (Id. at 40).

At the request of other defendants, Judge Schroeder issued an Amended Scheduling Order extending the deadline to file pretrial motions to February 15, 2019. (Dkt. 66). The Government filed its response to Defendant's omnibus pretrial motions on March 1, 2019. (Dkt. 75).

Oral argument was held before Judge Schroeder on March 12, 2019, and Defendant's omnibus motions were granted in part and denied in part. (See Minute Entry 3/12/2019; Dkt. 112-1 at 18-27³). With respect to the suppression motion, Judge Schroeder indicated that he would give Defendant until March 12, 2019, to file an affidavit "fully setting forth the basis for which the suppression should be granted or for the holding of a hearing. . . ." (Dkt. 112-1 at 62). Defense counsel responded that "after consultation withmy client, Mr. Thompson, I don't think we will be filing an affidavit." (Id.). No affidavit was forthcoming, and consistent with Judge Schroeder's statement at the appearance on March 12, 2019, he issued a Report, Recommendation and Order (the "R&R") concluding that because no affidavit of standing was filed by Defendant, he was not entitled to an evidentiary hearing on his suppression motion and therefore it was recommended that this Court deny Defendant's motion to suppress. (Dkt. 92).

On May 30, 2019, Defendant's current counsel was substituted for his prior counsel. (Dkt. 93).

On July 11, 2019, Defendant filed objections to the R&R. (Dkt. 99). Defendant conceded that the objections "assert new facts and arguments not raised to the Magistrate Judge for the reasons explained below and in the attached affidavit of defendant Titus Thompson." (Id. at ¶ 2). Defendant submitted for the first time an affidavit which purports to be an affidavit establishing his standing to object to the search of 89 Parkridge Avenue. (Dkt. 99-2). Defendant contends that he fired his prior counsel "because I came to realize they had not reviewed the Government's disclosures in my case and ignored my instructions." (Id. at ¶ 4). Defendant claims that he had "instructed" his prior attorneys "to prepare an affidavit of standing" in furtherance of his motion to suppress, and that he "was greatly disappointed and aggrieved" upon learning that the Court-ordered deadline for filing an affidavit of standing was missed. (Id.).

Defendant argues in his objections that the search warrant affidavit submitted to New York State Acting Supreme Court Justice John L. Michalski, upon which the search warrant for 89 Parkridge Avenue was issued, contained misrepresentations and omissions.Specifically, according to Defendant, the affidavit misrepresented to Justice Michalski the following:

(1) That the purpose of the requested search was to find drugs when the "true reason for their requested search . . . [was] to seize firearms" to further a federal ATF firearms trafficking investigation (Dkt. 99 at ¶ 14(i));

(2) Robert Williams was a reliable confidential source, when in fact, he had just been arrested pursuant to that ATF firearms trafficking investigation (based upon evidence seized pursuant to a federal search warrant authorized by Judge Schroeder) and he was motivated to provide information to law enforcement "as part of his desperate bid to help himself given the substantial prison time he now faced" (id. at ¶ 14(ii)); and,

(3) Defendant was selling cocaine at the residence, and Mr. Williams had purchased cocaine from Defendant within the last ten days (id. at ¶ 14(iii)).

Defendant also insists that the affidavit failed to adequately describe the residence "which the Government knew to be a two family house with separate occupied upper and lower apartments." (Id. at ¶ 14(iv)). This is problematic, according to Defendant, because according to a report of an interview of Mr. Williams prepared by ATF agents, he only reported visiting and seeing Defendant at the upper apartment—thus negating any probable cause for the search of the lower apartment. (Id.).

The Government responded in opposition to the objections on August 16, 2019. (Dkt. 112). In its response, the Government maintains that Defendant improperly raises issues not raised before Judge Schroeder and that this Court should not consider Defendant's untimely affidavit. (Id. at 6-9). The Government further submits that, in theevent the Court considers the untimely affidavit, it does not establish standing to contest the search of the lower apartment. (Id. at 9-14). Finally, the Government argues that the search warrant was supported by probable cause and Defendant has not established his entitlement to a Franks hearing. (Id. at 14-18).

In addition to its publicly filed response, the Government also submitted to the Court for "ex parte in camera review" the notes from Justice Michalski's interview of the confidential source referenced in the search warrant affidavit.

Oral argument was held before the undersigned on August 27, 2019, at which time the Court reserved decision. (Dkt. 114).

III. ANALYSIS

A. Defendant's Untimely Arguments and Submissions Not Raised Before the Magistrate Judge

The Court is troubled by Defendant's failure to comply with the deadlines set by Judge Schroeder and the fact that his counsel has now raised arguments in his objections that were never raised before Judge Schroeder. See Clarke v. United States, 367 F. Supp. 3d 72, 75 (S.D.N.Y. 2019) ("[B]ecause new claims may not be raised properly at this late juncture, such claims presented in the form of, or along with, 'objections,' should be dismissed." (quotation omitted)); Jo v. JPMC Specialty Mortg., LLC, 131 F. Supp. 3d 53, 59 (W.D.N.Y. 2015) ("[I]t is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not." (quotation omitted)).

The Government insists that there is no basis for Defendant's contention that his prior attorneys disregarded his instructions—and there is some merit to this argument when one considers that Defendant was present on March 12, 2019, when his prior counsel told Judge Schroeder that, after discussing the matter with Defendant and consistent with their approach since the return of the initial indictment, they were electing not to file an affidavit of standing. (Dkt. 112-1 at 62). During oral argument, Defendant's counsel suggested that the true crux of his client's complaint was that his prior attorneys did not review the discovery and uncover the information now presented by his current counsel—that law enforcement purportedly did an "end run" around Judge Schroeder who had issued the federal search warrant. However, for the reasons discussed herein, the Court is not persuaded that this newly uncovered "e...