Opinion
1:19-CR-00135 EAW
2022-05-31
UNITED STATES of America, v. Teng SUN, Defendant.
Charles E. Watkins, United States Attorney's Office, Buffalo, NY, for United States of America. Thomas J. Eoannou, Buffalo, NY, for Defendant.
Charles E. Watkins, United States Attorney's Office, Buffalo, NY, for United States of America.
Thomas J. Eoannou, Buffalo, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
Pending before the Court are objections filed by the government to a Supplemental Report and Recommendation issued by United States Magistrate Judge Jeremiah J. McCarthy, recommending that the Court find the government failed to prove that defendant Teng Sun's ("Defendant" or "Sun") consent to search his residence on March 14, 2019, was voluntary and uncoerced. (See Dkt. 99 (Supplemental Report and Recommendation); Dkt. 100 (Objections)). Familiarity with the Supplemental Report and Recommendation, and the Court's November 22, 2021 Decision and Order (hereinafter, "the November 22, 2021 D&O") (Dkt. 87), is assumed for purposes of this Decision and Order.
The Court has conducted a thorough review of the Supplemental Report and Recommendation and the parties’ filings before this Court, as well as the filings made before Judge McCarthy. In addition, the Court has considered the arguments advanced by counsel at the oral argument held on May 19, 2022. As indicated at oral argument, the Court adopts the Supplemental Report and Recommendation and grants Sun's motion to suppress evidence seized from the search of his residence. (See Dkt. 104).
BACKGROUND
The undersigned's November 22, 2021 D&O (Dkt. 87) adopted in part a Report & Recommendation issued by Judge McCarthy on July 1, 2021 (Dkt. 76). Specifically, the Court adopted the Report and Recommendation to the extent Judge McCarthy concluded that Sun's statements to law enforcement should be suppressed, but remanded the matter for further development on the issue of Sun's consent to search his residence. (Dkt. 87 at 2, 11-23). Specifically, Judge McCarthy had found the physical evidence seized from the search should be suppressed as fruit of the poisonous tree because U.S. Immigration and Customs ("ICE") Supervisory Detention and Deportation Officer ("SDDO") Farkas sought and obtained Sun's consent to search only after he was illegally interrogated, a conclusion the undersigned found did not automatically result in suppression of evidence, based on the holdings of United States v. McCoy , 407 F. App'x 514 (2d Cir. 2010), and United States v. Patane , 542 U.S. 630, 124 S.Ct. 2620, 159 L.Ed.2d 667 (2004). (Dkt. 87 at 21). Accordingly, the Court referred the case back to Judge McCarthy, "to make proposed findings of fact, including by resolving any credibility determinations relating to the consent to search, with a recommendation as to whether Sun's consent was voluntary and uncoerced." (Id. at 23).
Judge McCarthy received submissions from the parties addressing the issues identified in the November 22, 2021 D&O, including their position on whether the hearing should be reopened so that he could receive additional testimony on the issue of consent. (Dkt. 92). The government submitted a two-page brief, relying on its prior submissions and arguing that the Court should reopen the hearing to receive testimony from SDDO Sukmanowski, who had interactions with Sun at Royalton Town Court on March 14, 2019, and could provide testimony on the issue of consent. (Dkt. 93). The government had not called SDDO Sukmanowski as a witness on either of the prior hearing dates of June 15, 2020, or March 30, 2021. (Dkt. 66; Dkt. 70). Sun submitted a brief and a response to the government's brief, addressing the issues raised in the November 22, 2021 D&O, and also opposing the government's request to reopen the hearing, arguing that reopening the hearing to receive additional testimony was neither necessary nor appropriate. (See Dkt. 94 at 4; Dkt. 95).
Judge McCarthy determined the hearing should not be reopened (Dkt. 96; Dkt. 97) and afforded the parties the opportunity to submit additional briefing on the issues raised in the November 22, 2021 D&O (Dkt. 97). The parties did not make any additional submissions, and Judge McCarthy issued the Supplemental Report and Recommendation on April 7, 2022, finding that Sun's testimony was more credible than the testimony offered by SDDO Farkas and SDDO Corsi, and concluding that the government had not carried its burden in proving that Sun's express consent to search his residence was voluntary and uncoerced. (Dkt. 99).
The government filed objections to the Supplemental Report and Recommendation on April 13, 2022 (Dkt. 100), and Sun filed a response on April 28, 2022 (Dkt. 103). The Court held oral argument on May 19, 2022, at which time it indicated that it would adopt the Supplemental Report and Recommendation finding that the government did not establish voluntary consent, and therefore the physical evidence seized from the search of Sun's residence on March 14, 2019, would be suppressed. (Dkt. 104).
DISCUSSION
I. Legal Standard
A district court reviews any specific objections to a report and recommendation on a dispositive issue, such as a motion to suppress, under a de novo standard. Fed. R. Crim. P. 59(b)(3) ; see also 28 U.S.C. § 636(b)(1) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made."). To trigger the de novo review standard, objections to a report and recommendation "must be specific and clearly aimed at particular findings in the magistrate judge's proposal." Molefe v. KLM Royal Dutch Airlines , 602 F. Supp. 2d 485, 487 (S.D.N.Y. 2009). Moreover, "it 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." United States v. Gladden , 394 F. Supp. 3d 465, 480 (S.D.N.Y. 2019) (quoting Hubbard v. Kelley , 752 F. Supp. 2d 311, 313 (W.D.N.Y. 2009) ).
II. The Government's Objections
The government objects to the Supplemental Report and Recommendation on the basis that Judge McCarthy erred in not allowing testimony by SDDO Sukmanowski on the issue of consent. (Dkt. 100 at 7). The government does not specifically object to Judge McCarthy's credibility findings in the Supplemental Report and Recommendation, and at oral argument, government counsel conceded that on the record currently before the Court, it could not dispute Judge McCarthy's finding that it had failed to prove voluntary consent. Rather, the government contends that Judge McCarthy should have reopened the hearing to receive testimony from SDDO Sukmanowski, who could testify that Sun gave consent for the agents to enter his residence to obtain his wife's passport. (See id. at 8 ("The defendant gave consent, at least implied consent, for the ICE-ERO agents to enter his home for the purpose of retrieving his wife's passport.")).
In response, Sun argues that the government's objection with respect to the evidentiary hearing should be denied as "another bite at the apple in the form of calling yet another witness" the government could have called at the time of the suppression hearings. (Dkt. 103 at 2). Further, Sun argues that any argument relating to implied consent—as indicated by the Court in the November 22, 2021 D&O—was not timely raised and has been waived. (Id. at 3). Finally, Sun contends that Judge McCarthy's credibility findings are sound and well-supported by the record. (Id. at 3-5).
III. The Supplemental Report & Recommendation is Adopted
The Court turns first to the focus of the government's objection to the Supplemental Report and Recommendation, which is Judge McCarthy's denial of the government's request to reopen the suppression hearing. When the Court remanded this matter to Judge McCarthy, its only directive was that he "make proposed findings of fact, including by resolving any credibility determinations relating to the consent to search" (Dkt. 87 at 23), and it did not require that he reopen the hearing to receive further testimony. In the Supplemental Report and Recommendation, Judge McCarthy explained his reasoning for denying the request to reopen the hearing, noting that the government "did not indicate what [SDDO] Sukmanowski would say, nor did it provide an excuse for failing to offer that testimony at the initial hearing before [him], where consent was clearly at issue." (Dkt. 99 at 2).
Due to a conflict with Sun's original defense attorney in this matter, the suppression hearing took place on two dates—on June 15, 2020 (Dkt. 70), and on March 30, 2021 (Dkt. 66)—and during that time period, which spanned nearly one year, the government never expressed an intention to call SDDO Sukmanowski as a witness. Judge McCarthy's decision not to reopen the suppression hearing to receive testimony from SDDO Sukmanowski—which is a non-dispositive issue—may be reversed by the district judge only if it is "clearly erroneous or contrary to law." See United States v. Walton , No. 6:17-CR-06079 EAW, 2019 WL 101747, at *2 (W.D.N.Y. Jan. 4, 2019) (determining that magistrate judge's denial of the defendant's motion to reopen evidentiary hearing to compel testimony by agent was reviewed under "the deferential clearly erroneous or contrary to law standard," and clarifying that "this Court reviews [the Magistrate Judge's] recommendation that the suppression motion be denied de novo , but decisions concerning the manner in which the motion was adjudicated are not dispositive" (citing United States v. Pirk, 282 F. Supp. 3d 585, 590 n.4 (W.D.N.Y. 2017) ). Here, the government has failed to offer any argument as to why Judge McCarthy's decision was clearly erroneous or contrary to law, instead maintaining only that SDDO Sukmanowski can speak to Sun's consent and answer any outstanding questions for the Court. (See Dkt. 93 at 1). The government had ample opportunity to present SDDO Sukmanowski as a witness in this matter, and the Court will not afford the government yet another opportunity to carry its burden relative to Sun's consent to search. Accordingly, the Court overrules the government's objection to Judge McCarthy's denial of the request to reopen the suppression hearing.
Further, the Court concludes that any argument concerning implied consent—the proffered reason for seeking to present SDDO Sukmanowski's testimony—has been waived. See Gladden , 394 F. Supp. 3d at 480 ("In this circuit, it 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." (citation omitted)); see also United States v. Hunt , 440 F. Supp. 3d 221, 224 (W.D.N.Y. 2020) ("While the Government now tries to change course and rely on the automobile exception [to the warrant requirement], its failure to raise that argument before Judge McCarthy is fatal to its claim."). The government never raised an argument relating to implied consent initially before Judge McCarthy, nor has it explained its failure to do so. Therefore, the Court does not find it would be appropriate to allow the government to raise any such argument at this juncture.
Finally, the Court finds that Judge McCarthy's conclusions relating to witness credibility (see Dkt. 99 at 3-4) are proper and well-supported by the record. To that end, "[t]he Second Circuit has instructed that where a Magistrate Judge conducts an evidentiary hearing and makes credibility findings on disputed issues of fact, the district court will ordinarily accept those credibility findings." United States v. Gillespie , 264 F. Supp. 3d 462, 467-68 (W.D.N.Y. 2017) (alteration in original) (citation omitted). As explained above, Judge McCarthy credited Sun's testimony over the testimony offered by SDDOs Farkas and Corsi. Their testimony conflicted with the government's representations in its pre-hearing memorandum of law that Sun had consented by signing a consent form drafted by the officers, with both SDDO Corsi and Farkas testifying that Sun had drafted the form. (See Dkt. 30 at 15 (government's pre-hearing memorandum of law stating that SDDO Farkas drafted a handwritten consent form signed by Sun); Dkt. 66 at 9 (SDDO Corsi testifying that Sun authored and signed a consent to search form); Dkt. 70 at 10-11 (SDDO Farkas testifying that Sun did not want to sign a blanket consent form, but he wrote his own consent form)). Their testimony also conflicted with Sun's who testified that he did not write the consent to search form. (See Dkt. 66 at 50-51 (Sun testifying that he "did not write down that consent," that "one of the agents" wrote it, and he signed it under coercion)).
The Court further agrees with Judge McCarthy that SDDO Farkas's admission—that he knew the consent to search form did not specifically authorize the search of the garage, but he searched it anyway and found several weapons therein—is concerning. (See Dkt. 99 at 3 n.2; see also Dkt. 70 at 25). See, e.g., United States v. O'Neill , 239 F. Supp. 3d 651, 657, 662 (W.D.N.Y. 2017) (analyzing the defendant's expectation of privacy in detached garage separate from his expectation of privacy in residence, and further noting that "the plain language of the consent form illustrates that [a third-party] did not consent to a search of the garage; he consented only to a search of the bedrooms and basement of the residence").
As the Court noted in the November 22, 2021 D&O, Judge McCarthy, who observed the manner and demeanor of witnesses at the evidentiary hearing, is in the best position to make credibility findings, see Gillespie , 264 F. Supp. 3d at 467-68, and the Court finds the credibility determinations made by Judge McCarthy is this instance are well-supported by the record.
CONCLUSION
For the foregoing reasons, the Court adopts the Supplemental Report and Recommendation (Dkt. 99). Because the government has failed to prove that Sun's consent to search his home on March 14, 2019 was voluntary and uncoerced, the evidence seized during the search must be suppressed. Accordingly, Sun's motion to suppress evidence (Dkt. 29) is granted.
SO ORDERED.