Preliminary Statement — No. 1:21-cr-00009 (Dkt. 102, W.D.N.Y.)

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A Report, Recommendation and Order, Document 102, filed October 5, 2022 in United States v. Larry D. Jordan II, No. 1:21-cr-00009-JLS-HKS, in the U.S. District Court for the Western District of New York. Magistrate Judge H. Kenneth Schroeder, Jr. writes on a referral from the Hon. John L. Sinatra, Jr. under 28 U.S.C. § 636(b)(1). It describes the defendant's motion to suppress statements he made in custodial interrogation and after arrest, and notes that he did not file the supporting affidavit that the court allowed until September 12, 2022. The report recommends that his motions be denied in all respects and sets a fourteen (14) day period for objections. The order is five pages and is dated October 5, 2022 in Buffalo, New York.

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      Case 1:21-cr-00009-JLS-HKS         Document 102    Filed 10/05/22    Page 1 of 5




UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_____________________________________

UNITED STATES OF AMERICA,

                            Plaintiff,

 v.
                                                                      21-CR-9 JLS
LARRY D. JORDAN II,

                      Defendant.
_____________________________________


                     REPORT, RECOMMENDATION AND ORDER


              This case was referred to the undersigned by the Hon. John L. Sinatra,

Jr., in accordance with 28 U.S.C. ' 636(b)(1), for all pretrial matters and to hear and

report upon dispositive motions.



                              PRELIMINARY STATEMENT



              The defendant, Larry D. Jordan II (Athe defendant@), filed a motion wherein

he seeks suppression of alleged statements made by him while in “custodial

interrogation at his residence” as well as “any and all post-arrest statements made by

[him] during the three hour interrogation at the FBI” since “the statements were not

voluntary.” Dkt. #83, pp. 17-18, ¶s 48, 49, 51, 52. As an alternative, the defendant

requested that this Court “conduct a hearing to determine the admissibility of the

evidence.” Dkt. #83, p. 19, ¶ 53. However, the defendant failed to submit an affidavit
    Case 1:21-cr-00009-JLS-HKS           Document 102    Filed 10/05/22    Page 2 of 5




in support of his motions.



              On August 31, 2022, this Court heard oral argument of the defendant’s

omnibus discovery motions (Dkt. #83) and ruled on all of the issues raised in that

motion from the bench. (See minute entry of August 31, 2022). At that time, this

Court gave the defendant until September 12, 2022 to file an appropriate affidavit in

support of his motions seeking suppression of evidence and/or an evidentiary hearing in

the alternative. The government was to respond to any filings by the defendant no later

than September 19, 2022. (See minute entry of August 31, 2022).



              On September 14, 2022, the government filed a “Notice of Defendant’s

Failure to File Affidavit.” Dkt. #101.




                             DISCUSSION AND ANALYSIS



              The defendant basically claims that at the time he was placed in custody

pursuant to an arrest warrant on September 10, 2020 at his residence located at 19

Crabapple Lane, Lancaster New York, he was not given Miranda warnings by the

arresting agents and therefore any statements made by him “in response to a custodial

interrogation at his residence” as well as “all post-arrest statements by [him] during the

three hour interrogation at the FBI should be suppressed as the statements were not


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    Case 1:21-cr-00009-JLS-HKS        Document 102      Filed 10/05/22    Page 3 of 5




voluntary.” Dkt. #83, p. 18. ¶s 49, 51.



             In its response to the defendant’s motions, the government asserts that

the defendant “was arrested while agents were conducting the search of [his] home”

and that he was “brought to an interview room at the FBI Field Office” and was given

Miranda warnings and advice of rights “from a pre-written waiver form” and the

defendant acknowledged that he understood his rights and he signed the waiver of

rights form. Dkt. #90, pp. 16-17. A video recording was made of the proceedings in

which the defendant was given Miranda warnings and advice of rights and a copy of

that recording was given to defendant’s attorney in discovery. Dkt. #90, p. 16; see also

Government Exhibit B attached to its Response.



             As stated by the Court in United States v. Caruso, “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.” 684 F. Supp.

84, 87 (S.D.N.Y. 1988); United States v. Pena, 961 F.2d 333, 339 (2d Cir. 1992); United

States v. Gillette, 383 F.2d 843, 848 (2d Cir. 1967); United States v. Elgin, 837 F. Supp.

570, 572 (S.D.N.Y. 1993).



             Since the defendant has failed to comply with this Court’s directive of

August 31, 2022 by not submitting an affidavit in support of his suppression motion and

his alternative request for an evidentiary hearing, it is recommended that his motions be


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    Case 1:21-cr-00009-JLS-HKS         Document 102        Filed 10/05/22    Page 4 of 5




denied in all respects.



              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).




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     Case 1:21-cr-00009-JLS-HKS         Document 102       Filed 10/05/22    Page 5 of 5




              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.



DATED:        Buffalo, New York
              October 5, 2022


                                          H. Kenneth Schroeder, Jr.
                                          H. KENNETH SCHROEDER, JR.
                                          UNITED STATES MAGISTRATE JUDGE




                                              5


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