United States v. Chimera

201 F.R.D. 72, 2001 U.S. Dist. LEXIS 5899, 2001 WL 487387
CourtDistrict Court, W.D. New York
DecidedMay 3, 2001
DocketNo. 00-CR-46A(F)
StatusPublished
Cited by4 cases

This text of 201 F.R.D. 72 (United States v. Chimera) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Chimera, 201 F.R.D. 72, 2001 U.S. Dist. LEXIS 5899, 2001 WL 487387 (W.D.N.Y. 2001).

Opinion

ORDER

ARCARA, District Judge.

This case was referred to Magistrate Judge Leslie G. Foschio pursuant to 28 U.S.C. § 636(b)(1). Defendant Chimera filed a motion pursuant to 18 U.S.C. § 2518 seeking discovery of progress reports, minimization instructions and various other materiels prepared in connection with Title III wiretap applications. On January 25, 2001, Magistrate Judge Foschio filed a Decision and Order in which he: (1) denied defendant’s request for progress reports and his request for an in camera inspection of the reports by the Court; (2) denied defendant’s request for minimization instructions; and (3) denied defendant’s request for various other materials prepared in connection with the Title III applications.

Defendant filed objections to the Magistrate Judge’s Decision and Order, and the government filed a response thereto. Oral argument was held on March 30, 2001.

Pursuant to 28 U.S.C. § 636(b)(1)(A), the district court “may reconsider any pretrial matter under this subparagraph (A), where it has been shown that the magistrate’s order is clearly erroneous or contrary to law.” Id. Upon careful review of Magistrate Judge Foschio’s Decision and Order and arguments of counsel relating thereto, the Court finds that Magistrate Judge Foschio’s orders are neither clearly erroneous nor contrary to law.

Accordingly, defendant’s objections to Magistrate Judge Foschio’s Decision and Order are denied. The parties shall appear before the Court on May 4, 2001 for a meeting to set a trial date.

IT IS SO ORDERED.

[74]*74DECISION and ORDER

FOSCHIO, United States Magistrate Judge.

JURISDICTION

By order dated January 22, 2001 (Doc. # 31), Hon. Richard J. Arcara referred this matter to the undersigned for all pretrial matters. The matter is presently before the court on motion of Defendant Chimera, filed October 18, 2000 (Doc. # 21), and Defendant Catanzaro’s motion, filed December 20, 2000 (Doc. #30) for discovery relating to court orders issued pursuant to 18 U.S.C. § 2518(1).

BACKGROUND

Defendants are charged in single count indictment alleging conspiracy to own and operate an illegal gambling business in violation of 18 U.S.C. §§ 371, 1955. By order filed September 21, 2000, Defendants were to file any motions limited to discovery they believed necessary to permit them to file motions to suppress evidence gained as a result of several electronic intercept orders issued during the investigation. As noted, Defendant Chimera’s motion (“the Chimera motion”) was filed in accordance with the scheduling order. By letters filed October 24, 2000 (Doc. # 22), October 25, 2000 (Doc. #23), (Doc. #24), and October 31, 2000 (Doc. # 25), (Doc. # 26), Defendants DiGioia, Frank Mambrino, Carmen Mambrino, Cannizzaro, and Panepinto, respectively, joined in the Chimera motion. The Government filed its Response on November 3, 2000 (Doc. # 27). Defendants’ Reply was filed on November 16, 2000 (Doc. # 29). On December 20, 2000, Defendant Catanzaro filed a motion seeking, inter alia, similar relief (Doc. # 30). Oral argument was conducted December 21, 2000. Based on the following, Defendants’ motion should be DENIED.

FACTS

Between March 9, 1999 and September, 1999, foui' wiretap and visual surveillance orders were issued and executed as to the premises at 188 Grant Street in Buffalo, New York, where the alleged gambling operation took place. One eavesdropping order as to an auto owned by Defendant Catanzaro and a local restaurant was also issued. As a result of informal discovery, Defendants have received from the Government copies of all of the electronic surveillance orders and extensions, search warrants, along with the underlying applications and sealing orders issued by the court in connection with the investigation.

The Government provided copies of the applications and search warrants for the Grant Street premises and named individuals. Additionally, Defendants have received a copy of a “sneak and peek” warrant issued for the Grant Street premises on February 23, 1999. Defendants also have received a copy of the Government’s Verified Complaint, filed December 1, 1999, seeking forfeiture of the Grant Street premises providing further details of the results of the investigation. Further, the Government has provided all the electronic surveillance logs maintained by the investigators who monitored the court ordered intercepts, reflecting written notations of pertinent conversations and conduct. Affidavit of Joseph.M. LaTona, Esq., dated October 18, 2000, in Support of the Chimera Motion (“LaTona Aff.”), U5. Further, the Government has provided Defendants with some of the actual tape recorded conversations and visual observations obtained under the court orders, and has agreed to provide Defendants with access to all the tape recorded fruits of the intercept orders. Id.

However, the Government has declined to produce a draft of the initial intercept order affidavit prepared in connection with the March 9, 1999 applications and order. Letter to Joseph M. LaTona, Esq. from Anthony M. Bruce, Assistant United States Attorney, dated December 15, 2000. The Government has also declined to provide copies of the progress reports submitted to the issuing judges, any minimization instructions given to the monitoring agents, reports of surveil[75]*75lance activities, and “specimen pleadings” or drafts of the applications for the intercept orders issued during the investigation, however, the Government informed Defendants that such applications were prepared with guidance contained in a Department of Justice Electronic Surveillance Forms and Procedures Manual, which the Government also declined to provide. Letter to Joseph M. LaTona, Esq., dated October 5, 2000, from Anthony M. Bruce, Assistant United States Attorney.

Defendants now seek to obtain any reports directed to be filed by the issuing judges pursuant to 18 U.S.C. § 2518(6) (“progress reports”), instructions given to agents to guide them in complying with the minimization requirements of § 2518(5) (“minimization instructions”), reports regarding investigative activities on the part of government cooperating witnesses (“informant activity reports”), copies of any specimen pleadings (“boilerplate allegations”), LaTona Aff., H 32, which were used by the agents to prepare and submit the applications to the court for the respective intercept orders pursuant to § 2518(1), and materials, e.g., reports concerning the conduct of surveillance of Defendants’ activities by government investigators (“physical surveillance materials”) (“the requested information”).

DISCUSSION

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Bluebook (online)
201 F.R.D. 72, 2001 U.S. Dist. LEXIS 5899, 2001 WL 487387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-chimera-nywd-2001.