REPORT, RECOMMENDATION AND ORDER

KEN SCHROEDER, Magistrate Judge

Pursuant to 28 U.S.C. § 636(b)(1), all pretrial matters in this case were referred to the undersigned by Hon. William M. Skretny.

STATEMENT OF THE CASE

The defendant, Maria Garcia, along with five co-defendants, is charged in a multi-count indictment alleging violations relating to conspiracy, forced labor, trafficking in persons, social security fraud, immigration violations, and violations of the Migrant and Seasonal Agricultural Worker Protection Act ("MSPA") under 18 U.S.C. § 371; 982(a)2, (6)(A) (i) and (ii); 1590; 1546(a); 1594(b); 1589; 1594; 8 U.S.C. § 1324(a)(1)(A)(ii) and (iii); 21 U.S.C. § 853(p); 28 U.S.C. § 2461 (c); 29 U.S.C. § 1841 (b)(1)(A) and 1851; 42 U.S.C. § 408(a)(7)(B). (Docket #1).

The underlying bases for the aforesaid charges consist of alleged conduct by the defendant and her co-defendants whereby men and boys from Mexico were transported by the defendants to New York State and housed in "isolated, overcrowded and unsanitary conditions" and were required "to work in the fields of local growers." Further, the defendants allegedly "refused to permit [these workers] to leave their housing units for any reason other than work" and "failed or refused to pay them their wages" as well as "threatened them with physical violence and with being caught (sic) and deported by the Immigration and Naturalization Service (INS) if they attempted to leave. The workers were repeatedly told that they owed large sums of money to the defendants and could not leave without paying off their debts" and "on occasion, the defendants refused to provide the workers . . . with any food. The defendants also told the workers that, if they tried to escape, they would be hunted down and returned to the defendants." Government's Response to Defendant's Motion. (Docket #58, pp. 2-3).

More specifically, the defendant is charged in Counts 2-10 with "allegedly providing and obtaining and attempting to provide and obtain the labor and services of another by the listed prohibited actions in [ § 1589]." (Docket #43). She "is also charged with aiding and abetting the provision of forced labor in Counts 2-10, and with attempt under 18 U.S.C. § 1594" as well as "conspiring with others to, inter alia, [violate] § 1589." (Docket #43). In Count 11 of the indictment, the defendant is charged with "having trafficked persons for labor by recruiting, harboring, transporting, providing and obtaining persons for forced labor by `obtaining workers in Arizona and transporting them to New York and harboring them there in conditions of forced labor'" in violation of 18 U.S.C. § 1590.

The defendant has filed a motion seeking an order "declaring 18 U.S.C. § 1589 unconstitutional as violating the commerce clause" claiming that "Congress exceeded its powers under U.S. Constitution Art. 1, § 8 (the "Commerce Clause")" when it passed § 1589. As a result, it is argued that not only is § 1589 unconstitutional, but also, that part of the conspiracy charge in Count 1 of the indictment that is predicated on § 1589, and the charges in Counts 2 through 11 which are also predicated on § 1589, are invalid by reason of such unconstitutionality of § 1589 and therefore should be dismissed. (Docket #43).

DISCUSSION AND ANALYSIS

Although the defendant has submitted a detailed recitation of cases interpreting the application of Article 1, § 8 of the United States Constitution in support of her position, the defendant has missed the mark in that approach. For the reasons hereinafter set forth, the Court does not have to address the applicability of Article 1, § 8 of the United States Constitution in determining whether Congress acted within its authority when it legislated § 1589 entitled "Forced Labor" as part of the "Peonage and Slavery" provisions which were enacted on October 28, 2000 as part of the "Victims of Trafficking and Violence Protection Act," Pub.L. 106-386, Div. A.

Constitutional authority for this legislation is found in the Thirteenth Amendment to the United States Constitution, wherein it is provided:

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

The United States Supreme Court has expressly held that:

Federal Crimes are defined by Congress, and so long as Congress acts within its constitutional power in enacting a criminal statute, this Court must give effect to Congress' expressed intention concerning the scope of conduct prohibited, (citations omitted). Congress' power to enforce the Thirteenth Amendment by enacting § 241 and § 1584 is clear and undisputed. See U.S. Const, Amdt 13, § 2 ("Congress shall have power to enforce this article by appropriate legislation"), (citation omitted).

In analyzing the application of Section 2 of the Thirteenth Amendment, the United States Supreme Court has ruled that Section 2 of the Thirteenth Amendment "clothed Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States." Jones v. Alfred H. Mayer, Co., 392 U.S. 409, 439 (1968). The Court went on to note that "surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation." Id. at 440.

Because the analysis by the Second Circuit Court of Appeals of Section 2 of the Thirteenth Amendment to the United States Constitution directly addresses the issue raised by the defendant herein, brevity is intentionally sacrificed and the appropriate part of the Court's opinion is quoted at length.

The Thirteenth Amendment, unlike the Fourteenth, in and of itself reaches purely private conduct.

Thus it has long been settled that the Thirteenth Amendment "is not a mere prohibition of state laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States." Civil Rights Cases, 109 U.S. at 20, 3 S.Ct. 18. And accordingly, "[u]nder the Thirteenth Amendment the legislation, so far as necessary or proper to eradicate all forms and incidents of slavery and involuntary servitude, may be direct and primary, operating upon the acts of individuals, whether sanctioned by state legislation or not." Id. at 23, 3 S.Ct. 18; see also Runyon v. McCrary, 427 U.S. 160, 179, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976) (noting that it "has never been doubted" that the power granted Congress by the Thirteenth Amendment "includes the power to enact laws . . . operating upon the acts of individuals" (quotation marks and citation omitted)); Jones v. Alfred H. Mayer, Co., 392 U.S. 409, 438-39, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968) ("If Congress has power under the Thirteenth Amendment to eradicate conditions . . ., then no federal statute calculated to achieve that objective can be thought to exceed the constitutional power of Congress simply because it reaches beyond state action to regulate the conduct of private individuals."). The fact that § 245(b)(2)(B) is applied in this case to reach purely private conduct therefore does not — regardless of what might be the rule in the context of the Fourteenth Amendment — present any obstacle to that statute's being upheld as a proper exercise of Congress's power under the Thirteenth Amendment.

Although the Thirteenth Amendment, which was ratified in 1865, was enacted in the historical context of American slavery, which applied most exclusively to African Americans, the interpretation of the Amendment itself has not been so limited. The text of the Amendment nowhere identifies or otherwise singles out those whose servitude the Amendment had specifically been enacted to address. And the Supreme Court early on held that although "negro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter," and would apply equally to "Mexican peonage or the Chinese coolie labor system." The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 72, 21 L.Ed.2d 394 (1873). The Court, moreover, re-affirmed this sentiment roughly thirty years later, explaining that the Thirteenth Amendment "is the denunciation of a condition, and not a declaration in favor of a particular people. It reaches every race and every individual, and if in any respect it commits one race to the nation, it commits every race and every individual thereof. Slavery or involuntary servitude of the Chinese, of the Italian, of the Anglo Saxon, are as much within its compass as slavery or involuntary servitude of the African." Hodges v. United States, 203 U.S. 1, 16-17, 27 S.Ct. 6, 51 L.Ed. 65 (1906). There can, therefore, be no doubt that the Thirteenth Amendment's prohibitions extend, at the least, to all race-based slavery or servitude.

Furthermore, "race" as used in Thirteenth Amendment jurisprudence is a term of art, whose meaning is not limited by today's usage.

In order to invalidate a congressional enactment, there must be a plain showing that Congress has exceeded its constitutional bounds. United States v. Morrison, 529 U.S. 598, 607 (2000).

The defendant has failed to make such a showing and cannot do so since Section 2 of the Thirteenth Amendment expressly confers power on Congress to enact § 1589 as "appropriate legislation to enforce" the provision set forth in Section 1 of said Amendment. Therefore, it is RECOMMENDED that defendant's motion for an order declaring 18 U.S.C. § 1589 unconstitutional and the dismissal of part of Count 1 and Counts 2 through 11 of the indictment be DENIED.

Therefore, 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 ten (10) days after receipt of a copy of this Report, Recommendation and Order in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 72.3(a)(3).

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 Court's Order , Thomas v. Am, 474 U.S. 140 (1985); Wesolek, et al. v. Canadair Ltd., et al., 838 F.2d 55 (2d Cir. 1988).

The parties are reminded that, pursuant to Rule 72.3(a)(3) 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 72.3(a)(3), or with the similar provisions of Rule 72.3(a)(2) (concerning objections to a Magistrate Judge's Report, Recommendation and Order), may result in the District Judge's refusal to consider the objection.

The Clerk is directed to send a copy of this Report, Recommendation and Order to the attorneys for the parties.

REPORT, RECOMMENDATION AND ORDER

STATEMENT OF THE CASE

The defendant, Maria Garcia, along with five co-defendants, is charged in a multi-count indictment alleging violations relating to conspiracy, forced labor, trafficking in persons, social security fraud, immigration violations, and violations of the Migrant and Seasonal Agricultural Worker Protection Act ("MSPA") under 18 U.S.C. § 371; 982(a)2, (6)(A) (i) and (ii); 1590; 1546(a); 1594(b); 1589; 1594; 8 U.S.C. § 1324(a)(1)(A)(ii) and (iii); 21 U.S.C. § 853(p); 28 U.S.C. § 2461 (c); 29 U.S.C. § 1841 (b)(1)(A) and 1851; 42 U.S.C. § 408(a)(7)(B). (Docket #1).

The underlying bases for the aforesaid charges consist of alleged conduct by the defendant and her co-defendants whereby men and boys from Mexico were transported by the defendants to New York State and housed in "isolated, overcrowded and unsanitary conditions" and were required "to work in the fields of local growers." Further, the defendants allegedly "refused to permit [these workers] to leave their housing units for any reason other than work" and "failed or refused to pay them their wages" as well as "threatened them with physical violence and with being caught (sic) and deported by the Immigration and Naturalization Service (INS) if they attempted to leave. The workers were repeatedly told that they owed large sums of money to the defendants and could not leave without paying off their debts" and "on occasion, the defendants refused to provide the workers . . . with any food. The defendants also told the workers that, if they tried to escape, they would be hunted down and returned to the defendants." Government's Response to Defendant's Motion. (Docket #58, pp. 2-3).

More specifically, the defendant is charged in Counts 2-10 with "allegedly providing and obtaining and attempting to provide and obtain the labor and services of another by the listed prohibited actions in [ § 1589]." (Docket #43). She "is also charged with aiding and abetting the provision of forced labor in Counts 2-10, and with attempt under 18 U.S.C. § 1594" as well as "conspiring with others to, inter alia, [violate] § 1589." (Docket #43). In Count 11 of the indictment, the defendant is charged with "having trafficked persons for labor by recruiting, harboring, transporting, providing and obtaining persons for forced labor by `obtaining workers in Arizona and transporting them to New York and harboring them there in conditions of forced labor'" in violation of 18 U.S.C. § 1590.

The defendant has filed a motion seeking an order "declaring 18 U.S.C. § 1589 unconstitutionally void for vagueness" and argues that "[b]ecause the Defendant is charged in Counts 2-10 with violating 18 U.S.C. § 1589, those counts must be dismissed" and that "[s]ince part of the conspiracy charge in Count 1 is based on a violation of 18 U.S.C. § 1589, part of Count 1 must be dismissed" as should Count 11 since it "involves a violation of 18 U.S.C. § 1594 that is predicated on a violation of 18 U.S.C. § 1589." (Docket #45).

DISCUSSION AND ANALYSIS

As the United States Supreme Court has stated:

The starting point in every case involving construction of a statute is the language itself. Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756 (1975); see also United States v. Nelson, 277 F.3d 164, 186 (2d Cir. 2002).

Title 18 U.S.C. § 1589, entitled "Forced Labor" provides:

Whoever knowingly provides or obtains the labor or services of a person —

(1) by threats of serious harm to, or physical restraint against, that person or another person;

(2) by means of any scheme, plan, or pattern intended to cause the person to believe that, if the person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint; or

(3) by means of the abuse or threatened abuse of law or the legal process,

shall be fined under this title or imprisoned not more than 20 years, or both. If death results from the violation of this section, or if the violation includes kidnapping or the attempt to kidnap, aggravated sexual abuse or the attempt to commit aggravated sexual abuse, or an attempt to kill, the defendant shall be fined under this title or imprisoned for any term of years or life, or both.

In determining whether a statute is ambiguous, "a court must first determine whether the statute gives the person of ordinary intelligence a reasonable opportunity to know what is prohibited and then consider whether the law provides explicit standards for those who apply it." United States v. Strauss, 999 F.2d 692, 697 (2d Cir. 1993); Chatin v. Coombe, 186 F.3d 82, 87 (2d Cir. 1999); United States v. Handakas, 286 F.3d 92, 101 (2d Cir. 2002). If the statute is "plain and unambiguous on its face, a court ordinarily does not look to legislative history as a guide to its meaning." Tenn. Valley Auth. v. Hill, 437 U.S. 153, 185, n. 29 (1978); United States v. Nelson, supra at 186. The fact that Congress may have used broad language in crafting a criminal statute does not cause it to be impermissibly vague. United States v. Cueto, 151 F.3d 620, 630 (7th Cir. 1998); United States v. Brenson, 104 F.3d 1267, 1281 (11th Cir. 1997). As the United States Supreme Court has held:

The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statues both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.

The defendant argues that the use of the terms "obtains," "threats of serious harm to or physical restraint" and "means of the abuse or threatened abuse of law or the legal process" in § 1589 "are not . . . anywhere defined" (Docket #45, p. 3) and therefore, such terms as used "make it impossible for a lay person, let alone an attorney or judge, to determine what conduct is prohibited." (Docket #45, p. 4). In further support of this position, the defendant puts forth various hypothetical examples that might be considered violative of the statute notwithstanding that the hypothetical actor would not be able to discern such "because of the sweeping, undefined nature of the statute itself." (Docket #45, p. 5). I find these arguments to be without legal merit for the following reasons:

In addressing the issue of "vagueness," the United States Supreme Court has stated:

A statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement. [T]he first concern may be ameliorated by the fact that [§ 1589] contains a scienter requirement."

Since § 1589 only applies to a person who "knowingly provides or obtains the labor or services of a person" by the prohibited means described in subsections 1, 2, and 3 thereof, the issue of notice is properly "ameliorated." In order to establish a violation of § 1589, the government must prove a specific intent and therefore, such requirement nullifies the defendant's claim of impermissible vagueness. See United States v. Rybicki, 287 F.3d 257, 263 (2d Cir. 2002); United States v. Margiotta, 688 F.2d 108, 129 (2d Cir. 1982); United States v. Bohonus, 628 F.2d 1167, 1174 (2d Cir. 1980).

1. Lack of Definitions Argument

The Constitution does not require the legislature to incorporate Webster's Dictionary into each statute in order to insulate it from vagueness challenges.

The words used in § 1589 are common words and "the likelihood that anyone would not understand any of those common words seems quite remote." Hill v. Colorado, 530 U.S. at 732. The words and phrases cited by the defendant have a plain and unambiguous meaning. "We can never expect mathematical certainty from our language." Grayned v. City of Rockford, 408 U.S. 104, 110 (1972). "The requirement of reasonable certainty does not preclude the use of ordinary terms to express ideas which find adequate interpretation in common usage and understanding." Sproles v. Binford, 286 U.S. 374, 393 (1932); United States v. Re, 336 F.2d 306, 316 (2d Cir. 1964). Furthermore, "the fact that Congress might, without difficulty, have chosen `[c]learer and more precise language' equally capable of achieving the end which it sought does not mean that the statute which it in fact drafted is unconstitutionally vague." (citation omitted). United States v. Powell, 423 U.S. 87, 94 (1975).

Even if the face of the statute were deemed to be ambiguous, the Court must then look to the legislative history of § 1589 as an aid "in establishing Congress' intent and hence the statute's meaning." United States v. Nelson, 277 F.3d 164, 186 (2d Cir. 2002). As the Second Circuit Court of Appeals has instructed:

In making this inquiry, we rely principally on the reports of the legislative committees involved in drafting the statute and in steering it through Congress. The Supreme Court has said that these Reports, "which represent the considered and collective understanding of those congressmen involved in drafting and studying proposed legislation," constitute "the authoritative source for finding the Legislature's intent." (citing Garcia v. United States, 469 U.S. 70, 76 (1984)).

Section 1589 was enacted on October 28, 2000 as part of the "Trafficking Victims Protection Act" ("TVPA") which is a subsection of the Victims of Trafficking and Violence Protection Act of 2000. Pub.L. 106-386, Div. A., §§ 101-113, 114 Stat. 1464 (October 28, 2000). The House Conference Report states in relevant part:

Section 1589 is intended to address the increasingly subtle methods of traffickers who place their victims in modern-day slavery, such as where traffickers threaten harm to third persons, restrain their victims without physical violence or injury, or threaten dire consequences by means other than overt violence. Section 1589 will provide federal prosecutors with the tools to combat severe forms of worker exploitation that do not rise to the level of involuntary servitude as defined in Kozminski. Because provisions within section 1589 only require a showing of a threat of "serious harm," or of a scheme, plan, or pattern intended to cause a person to believe that such harm would occur, federal prosecutors will not have to demonstrate physical harm or threats of force against victims. The term "serious harm" as used in this Act refers to a broad array of harms, including both physical and nonphysical, and section 1589's terms and provisions are intended to be construed with respect to the individual circumstances of victims that are relevant in determining whether a particular type or certain degree of harm or coercion is sufficient to maintain or obtain a victim's labor or services, including the age and background of the victims.

For example, it is intended that prosecutors will be able to bring more cases in which individuals have been trafficked into domestic service, an increasingly common occurrence, not only where such victims are kept in service through overt beatings, but also where the traffickers use more subtle means designed to cause their victims to believe that serious harm will result to themselves or others if they leave, as when a nanny is led to believe that children in her care will be harmed if she leaves the home. In other cases, a scheme, plan or pattern intended to cause a belief of serious harm may refer to intentionally causing the victim to believe that her family will face harms such as banishment, starvation, or bankruptcy in their home country.

H.R. Conf. Rep. No. 106-939 at 101 (2000), 2000 SL 1479163 (Oct. 5, 2000).

Perhaps the least common usage of words rests in the phrase "by means of the abuse or threatened abuse of law or the legal process," but such use does not cause the statute or that particular provision to be void or unconstitutional. Black's Law Dictionary, Seventh Edition, defines "abuse of process" and "abuse of legal process" as:

The improper and tortious use of a legitimately issued court process to obtain a result that is either unlawful or beyond the process's scope.

The defendant is charged with, among other things, participating in a conspiracy along with her co-defendants wherein and whereby the alleged victim farmworkers referred to in the indictment were basically confined to their quarters and the farm fields in which they were working by "threatening" said victims with serious legal consequences, i.e., deportation for having violated the immigration laws of the United States. (Docket #1, ¶¶ 14, 36, 39). Such alleged "threats" clearly fall within the concept and definition of "abuse of legal process" since the alleged objective for same was to intimidate and coerce the workers into "forced labor."

The Restatement of Torts (Second) defines "abuse of process" as follows:

One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed. . . .

Rest.2d Torts § 682; see also Savino v. City of New York, 331 F.3d 63, 77 (2d Cir. 2003).

The term is certainly a well-known term of art in the law and is not unduly vague in its application to the defendant herein based on the express charges against her in the indictment. Therefore, her argument that the statute is unconstitutionally vague is once again without legal merit when considered in the light of the alleged facts in the case at hand. United States v. Mazurie, 419 U.S. 544, 530 (1975).

Further evidence of Congress' concern and intent with respect to the evils addressed in § 1589 is found in 22 U.S.C. § 7101 and 7102 ("TVPA"). It is quite clear as to what the statue prohibits.

[I]f the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague even though marginal cases could be put where doubts might arise, (citations omitted). And if this general class of offenses can be made constitutionally definite by a reasonable construction of the statute, [the] court is under a duty to give the statute that construction.

2. Defendant's Claim Of Vagueness Based On Hypotheticals

The United States Supreme Court has expressly stated that "speculation about possible vagueness in hypothetical situations not before the Court will not support a facial attack on a statute when it is surely valid `in the vast majority of its intended applications'." Hill v. Colorado, supra at 733 (citing United States v. Raines, 362 U.S. 17, 23 (1960). Further, "[i]t is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." United States v. Mazurie, supra at 550; United States v. Powell, 423 U.S. 87, 92 (1975); United States v. Rybicki, supra at 263; United States v. Whittaker, 999 F.2d 38, 42 (2d Cir. 1993). The case at bar does not involve First Amendment issues and therefore, defendant's proffered hypotheticals have no application to the resolution of the issue herein.

3.Arbitrary And Discriminatory Enforcement Issue

Although the "void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness so that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement," the United States Supreme Court has stated "that the more important aspect of the vagueness doctrine `is not actual notice, but the other principal element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement'" (citing Smith v. Gognen, 415 U.S. 566, 574 (1974).) Kolender v. Lawson, 461 U.S. 352, 357-358 (1983).

There is nothing in § 1589 that would cause one to conclude that its interpretation and enforcement is left "to the moment-to-moment judgment of the policeman on his beat" (Smith v. Gognen, supra at 575; nor does "it furnish a convenient tool for harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure (Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972)); nor does it encourage arbitrary and erratic arrests and convictions. (Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940)). Kolender at 360. As a result, I find that § 1589 meets both requirements for constitutional validity and therefore RECOMMEND that defendant's motion to declare it unconstitutional on the basis of vagueness be, in all respects, DENIED.

Therefore, 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 ten (10) days after receipt of a copy of this Report, Recommendation and Order in accordance with the above statute, Fed.R.Civ.P. 72(b) and Local Rule 72.3(a)(3).

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 Court'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).

The parties are reminded that, pursuant to Rule 72.3(a)(3) 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 72.3(a)(3), or with the similar provisions of Rule 72.3(a)(2) (concerning objections to a Magistrate Judge's Report, Recommendation and Order), may result in the District Judge's refusal to consider the objection .

The Clerk is directed to send a copy of this Report, Recommendation and Order to the attorneys for the parties.