Opinion
No. 00 Civ. 3284 (LTS) (RLE)
November 14, 2002
REPORT AND RECOMMENDATION
I. INTRODUCTION
Pro se petitioner Tony Lee Simpson ("Simpson") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction on November 29, 1995, in New York State Supreme Court, New York County. A jury found Simpson guilty of murder and robbery, and he is currently serving a total sentence of one hundred years to life. In his petition filed April 18, 2000, Simpson alleges that the trial court improperly admitted hearsay testimony, in violation of his right to cross-examine witnesses under the Confrontation Clause of the Sixth Amendment. Respondent argues that because the statements were not offered for the truth of the matter asserted therein, they were not hearsay. Additionally, respondent argues that the state court's decision should not be overturned because it did not involve an unreasonable application of established Supreme Court precedent. For the reasons set forth below, I recommend that Simpson's petition be DISMISSED.
II. BACKGROUND
On April 9, 1993, Prince Jvdav Khedker ("Prince") and Princess Neneschka Khedker ("Princess") were murdered at their Park Avenue apartment while being robbed by Simpson and George Cobo ("Cobo"). Cobo had arranged to meet the Prince and Princess at their apartment that evening for cocktails. Respondent's Memorandum of Law in Support of Answer Opposing Petition for a Writ of Habeas Corpus ("Resp. Mem.") at 2; Trial Transcript ("Tr.") 1614-15. Evidence offered at the trial showed that the Prince and Princess were bound with duct tape, slashed with a knife, beaten, and strangled or suffocated, and the apartment was ransacked. Resp. Mem. at 2. Following the murders, Simpson and Cobo left for Florida and lived off the proceeds of their crime until June 1993, when they returned to New York. Id. at 2, 4.On June 27, 1993, Milton Setzer ("Setzer"), and Eric Price ("Price") were stabbed and murdered in their apartment located on West End Avenue. Petition at 1; Resp. Mem. at 2, 4-5. Simpson and Cobo had responded to Setzer's advertisement in the New York Times for the sale of his piano. Resp. Mem. at 2. The State argued that both Simpson and Cobo stabbed and slashed Setzer and Price to death. Simpson, on the other hand, alleged that Cobo told him no one would be hurt, but that Cobo produced a knife while inside Setzer's apartment and murdered the victims himself. Id. at 4. The two men used Setzer and Price's credit cards, and eventually traveled to Reno, Nevada, where they lived off the proceeds of the crimes. Id. About one and a half weeks after arriving in Reno, the two men had a fight. Simpson hit Cobo, took his belongings, and left. Cobo called 911, stating that Simpson was wanted in New York for the four murders. Id. at 3; Petition at 1. Police subsequently arrested both men. Resp. Mem. at 3.
Simpson confessed to his participation in the crimes, but insisted that he had no intention to commit murder or any knowledge that Cobo intended to use a weapon. Tr. at 1617, 1662, 1711-13. He claimed his only intention was to rob the victims. Id. at 63. Cobo, however, had forced Simpson to engage in sexual acts, which he had photographed. He threatened to send the pictures to Simpson's family and to turn Simpson into the police for a prior burglary charge if he did not accompany Cobo to the homes of the victims. Id. at 61, 63.
III. PROCEDURAL HISTORY
A. Trial Court
Simpson and Cobo were tried separately. Statements made by Cobo were admitted in Simpson's trial through the testimony of several law enforcement officials. Simpson repeatedly argued that the statements made by Cobo constituted hearsay in violation of his constitutional right to confrontation and his right to a fair trial. Tr. at 20, 985, 1039-44, 1051, 1057, 1071-72, 1096-99, 1176, 1354, 1536, 1957.
1. Testimony Admitted at Trial
a. Officer Ames
Police officer William J. Ames ("Ames") of Reno, Nevada, testified that he received a 911 call from a male, later identified as Cobo. Tr. at 1004-05. Cobo wanted to report another man who was either wanted for questioning or had an outstanding warrant for his arrest in connection with a murder in New York. Id. at 1005. According to Ames's testimony, Cobo said a reporter in New York whom he called had verified that this man was wanted for murder. Id. at 1005-06. Cobo estimated that the suspect was approximately twenty or twenty-one years old and said an officer should pick up the man at the Downtowner Motor Lodge in Reno. Id. at 1007-08. Although Cobo told Ames that he was calling from the Flamingo Hilton, he was actually calling from the Reno/Tahoe International Airport, id. at 1005-06, and Ames reported the call to the Reno/Tahoe International Airport Police. Id. at 1009. Officer Barry Roseman ("Roseman") found Cobo in front of the American Airlines counter, the location to which the phone number had been traced. Id. at 1009, 1017.
b. Officer Roseman
According to Roseman, Cobo identified himself as the person who made the 911 calls and said that he tried to tell the Reno Police about an individual wanted for four murders in New York. Id. at 1018. Cobo produced a Florida identification card with his name. Id. at 1018-20. He was arrested pursuant to an outstanding warrant from Las Vegas and was placed in a holding cell at the Reno/Tahoe International Airport Police Office. Id. at 1024-25. Cobo identified Simpson by name and spoke agitatedly about the police finding him. Id. at 1025. Roseman contacted the Reno Police Department to request that Cobo be transported to the regional jail for booking. Id. at 1026. Roseman also discovered that Reno police were in contact with Simpson. Id. He testified that after he repeated this information to Cobo, Cobo seemed relieved. Id. at 1027.
Later, Roseman contacted the Reno police dispatch, who had performed a fruitless warrant search on Simpson. Id. at 1027. After he informed Cobo, Cobo became very quiet, and asked, "How can that be? He murdered four people." Id. at 1028. Upon Roseman explaining that the police did not have enough information to give rise to probable cause to arrest Simpson, Cobo told Roseman that he witnessed Simpson murder all four people. Id. at 1029. Cobo gave Roseman the victims' names, told him that their throats had been slit, gave Roseman the name and phone number of New York City police detective Terry Mulvey ("Mulvey"), and told Roseman to call him. Id. at 1030-32. Roseman called the number and spoke to an unnamed New York detective, who confirmed that the names given by Cobo were homicide victims. Id. at 1033. Roseman was then called by another unnamed New York detective, who told him that they were "looking at George Cobo as an accessory to [the] murders and . . . Tony Simpson as a prime suspect." Id. at 1034. Lieutenant Sullivan, another New York detective, telephoned Roseman and said, "as one police officer to another, I'm informing you that there's probable cause to arrest Tony Simpson." Id. at 1035. Roseman arranged with Reno police officer Jack Munns ("Munns") for Cobo to be kept in the holding cell while Munns went to locate Simpson at the Downtowner Motor Lodge. Id. at 1037.
c. Officer Munns
Munns testified that he was dispatched to the airport to take Cobo into custody, and upon arrival, spoke to Roseman and then to Cobo. Id. at 1046. According to Munns, Cobo told him that he was present when Simpson committed the murders, and that Cobo had set these incidents up as robberies. Id. at 1049. Munns also spoke to Lieutenant Sullivan over the phone, who told him that there had been four murders in New York, that Simpson and Cobo were suspects, and that two New York detectives would be coming to Reno. Id. at 1051. Munns took Cobo to the Washoe County Detention Facility. Id. at 1052. Munns testified that he gave Sergeant Andy Kachurak ("Kachurak") some photographs of Simpson that he obtained from Cobo in order to make a flyer to aid in the search for Simpson. Id. at 1053.
d. Sergeant Kachurak
Sergeant Kachurak testified that he went to the airport because he was contacted by Munns. Id. at 1063. According to Kachurak, while at the airport security office, Cobo called him over, and was very agitated and upset that the police had Simpson earlier that night but let him go. Id. at 1065. Cobo said that he and Simpson had killed four people in New York by cutting their throats. Id. Kachurak testified that he returned to the police station and put out an "Attempt to Locate" on Simpson, indicating to other police officers that if Simpson were located, he was to be held for the New York detectives or a supervisor. Id. at 1066.
e. Officer Smith
Reno police officer Charles E. Smith ("Smith") testified about the police officers' initial interview with Simpson, the subsequent search for him, and his arrest. Id. at 1076-93. In the initial interview at the Downtowner Motel, Smith explained to Simpson that the police were there because somebody had called the Reno Police Department and implicated him in several homicides in New York. Id. at 1079. Simpson denied any knowledge of the murders. Id. at 1080.
2. Evidentiary Rulings
Although Simpson objected to the officers' testimony on the grounds that they involved hearsay and violated his right to cross-examine the witness, id. at 20, 985, 1039-40, 1051, 1071-72, 1096-1099, 1176, 1536, the trial judge overruled his objections, stating that Cobo's statements were admissible to show that the police had probable cause to arrest Simpson. Id. at 984-86, 1010-11, 1039-41, 1097, 1182-90, 1296, 1953-64. Simpson argued that limiting instructions to the jury would be inadequate to reverse the prejudicial effect on his defense. Id. at 987, 1041. After the testimony of Ames, Roseman, Munns and Kachurak, the trial judge told the jury that the statements of Cobo and other declarants that the police officers testified to were not evidence of guilt and "were not admitted for the truth of the contents thereof." Id. at 1072.
Prior to the testimony of Simpson, who was the final witness, the prosecution requested that the court strike the evidence of Cobo's statements introduced by the law enforcement officials and instruct the jury to disregard them, id. at 1537, because Simpson did not raise the issue of probable cause for his arrest. Id. at 1538. The judge instructed the jury to disregard the testimony from Nevada officials about statements made by Cobo alleging conduct by Simpson and "statements made by New York Police officials to Nevada Police officials about the State of New York investigation." Id. at 2204. The judge also told the jury to "disregard these segments of the testimony entirely and completely, expunge them from your minds . . . Because I am striking this testimony, the record of this case stands as if you had never heard any of this hearsay testimony in the first place." Id. at 2204-05.
3. Sentence
A jury convicted Simpson on November 29, 1995, of murder and robbery of all four victims. Trial Transcript ("Tr.") at 2345-50. This conviction included four counts of murder in the second degree (New York Penal Law Section 125.25[3]). for which Simpson received four consecutive terms of twenty-five years to life, Tr. at 2345-48; Resp. Mem. at 1, and two counts of murder in the second degree (New York Penal Law Section 125.25[1]), for which he received two consecutive terms of twenty-five years to life, to run concurrently with the prior counts. Tr. at 2347; Resp. Mem. at 1. Simpson was also convicted of four counts of robbery in the first degree (New York Penal Law Section 160.15[1]), and another four counts of robbery in the first degree (New York Penal Law Section 160.15[3]). Tr. at 2346-48; Resp. Mem. at 1. For the robbery convictions, Simpson was sentenced to eight terms of twelve-and-a-half to twenty-five years, to run concurrently with the murder counts. Sen. Tr. at 25-28. The aggregate sentence was 100 years to life, People v. Simpson, 682 N.Y.S.2d 376, 256 A.D.2d 205 (App.Div. 1998), which Simpson is currently serving at Attica Correctional Facility.
B. Appeal
The Appellate Division, First Department, granted Simpson leave to appeal on December 8, 1995. Resp. Mem. at Exh. B; Petitioner's Brief, p. 1. He raised the following three issues on appeal: (1) his constitutional rights to confrontation and to a fair trial were violated by the admission of the law enforcement officials' testimony regarding Cobo's hearsay statements, which declared that Simpson committed the four murders, Petitioner's Brief at 32-42; (2) statements made by Simpson prior to his arrest and physical evidence gathered by police were obtained in violation of his constitutional rights under the Fourth Amendment of the United States Constitution and Article I, § 12 of the New York Constitution, 14. at 42-53; and (3) the trial court erred in suppressing statements made by the prosecutor in Cobo's trial, which should have been admitted to show inconsistencies in the prosecutor's position as to whether Cobo or Simpson committed the murders. Id. at 53-57.
On December 22, 1998, the Appellate Division, First Department, unanimously denied Simpson's appeal and affirmed his conviction. People v. Simpson, 682 N.Y.S.2d 376 (App.Div. 1998). Specifically, the Appellate Division held that the testimony regarding Cobo's statements was properly admitted because in his opening statement, "[Simpson's] counsel opened the door to such testimony . . . by indicating that he would challenge the propriety of defendant's arrest," and furthermore, the trial court instructed the jury to disregard all testimony concerning Cobo's statements. Simpson, 682 N.Y.S.2d at 376. The Appellate Division also indicated that the testimony was properly admitted because "it demonstrated how the police came to view [Simpson] as a suspect in the crimes." Id.
On February 4, 1999, Simpson sought leave to appeal to the New York State Court of Appeals. Resp. Mem. at Exh. B, p. 1. On April 13, 1999, the Court of Appeals denied leave, holding that Simpson had presented no reviewable question of law. Resp. Mem. at Exh. G, p. 1. Simpson timely submitted his habeas corpus petition on March 24, 2000, which was then filed with the Court on May 1, 2000. The only claim raised in Simpson's petition is that the admission of hearsay testimony violated his constitutional right to confrontation. Petition at 8.
III. ANALYSIS
A. Exhaustion
Under 28 U.S.C. § 2254(b), amended in 1996 by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Title I, § 106(b), Pub.L. No. 104-132, 110 Stat. 1214 (April 24, 1996), a federal court may not consider a petition for habeas corpus unless the petitioner has exhausted all state judicial remedies. See 28 U.S.C. § 2254(b)(1)(A). The exhaustion doctrine requires a habeas petitioner to "first have given the state courts a fair opportunity to pass upon his federal claim" in the interests of comity and federalism. Dave v. Attorney Gen. of N.Y., 696 F.2d 186, 191 (2d Cir. 1982), cert. denied, 464 U.S. 1048 (1984). In raising a federal claim in state court the petitioner does not have to cite "`book and verse on the federal constitution.'" Picard v. Connor, 404 U.S. 270, 278 (1971) ( quoting Daugherty v. Gladden 257 F.2d 750, 758 (9th Cir. 1958)). However, "`the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature.'" Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997) ( quoting Daye, 696 F.2d at 192). A petitioner can give notice of the claim's federal nature through:
(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, [or] (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.Dave, 696 F.2d at 194; see also Gray v. Netherland, 518 U.S. 152, 153 (1996); Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997).
Moreover, a petitioner must have "placed before the state court essentially the same legal doctrine he asserts in his federal petition." Daye, 696 F.2d at 191-92; see also Fielding v. LeFevre, 548 F.2d 1102, 1107 (2d Cir. 1977); Figueroa v. Portuondo, 96 F. Supp.2d 256, 276 (S.D.N.Y. 1999). As a procedural matter, the claim must have been presented to "the highest state court from which a decision can be had," in order to be considered exhausted. Daye, 696 F.2d at 190, n. 3; Smalls v. Batista, 6 F. Supp.2d 211, 213 (S.D.N.Y. 1998).
At trial, Simpson raised the objection that the admission of Cobo's hearsay statements violated his right to confront Cobo as a witness, and he made numerous unsuccessful motions for a mistrial. He further argued that he had been unduly prejudiced by the testimony and that any jury instructions — whether to limit the purpose of the testimony or to strike the testimony completely — were an inadequate remedy. Tr. at 1040-44, 1057, 1071-72, 1097, 1354, 1957. To the Appellate Division, Simpson presented his claim that the trial court deprived him of his constitutional right to confrontation and to a fair trial. Simpson, 682 N.Y.S.2d at 377. Simpson's objections, while not specifically raised under the federal constitution, were phrased in terms sufficiently particular so as to raise a Sixth Amendment claim before the state courts. Moreover, he utilized all avenues of appellate review within the state court system before proceeding to federal court. Thus, Simpson has sufficiently exhausted his state court remedies.
B. Cognizable Claim
The admissibility of hearsay "as evidence in a trial is a matter `pertaining to New York state courts not cognizable on federal habeas review.'" Morales v. Portuondo, 1999 WL 608773, at *3 (S.D.N.Y. Aug. 12, 1999) ( quoting Montalvo v. Portuondo, 1998 WL 851589, at *7 (S.D.N.Y. Dec. 9, 1998)); see also Estelle v. McGuire, 502 U.S. 62, 67-69 (1991); Ayala v. Leonardo, 20 F.3d 83, 91 (2d Cir. 1994), cert. denied, 513 U.S. 888 (1994). Therefore, review is only permitted where "[an] evidentiary error made at trial had a `substantial effect or influence in determining the jury's verdict'" Morales v. Portuondo, 1999 WL 608773, at *3 ( quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)); see also Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988). An error may be harmless if it "did not influence the jury, or had but very slight effect." Kotteakos v. United States, 328 U.S. 750, 764 (1946). "`It is the materiality of the excluded evidence that determines whether a defendant has been deprived of a fundamentally fair trial.'" Christie v. Hollins, 2002 WL 1149317, at *20 (S.D.N.Y. May 29, 2002) ( quoting Rosario, 839 F.2d at 925); see also Chambers v. Mississippi, 410 U.S. 284, 302-03 (1973). Otherwise, the claim is not constitutional and a federal court is without jurisdiction to review it.
Even if the admission of statements made by co-defendant Cobo was erroneous and the jury instructions inadequate, the evidence strongly supported the jury's verdict of guilty on the murder counts. The murders occurred during the commission of robberies at the apartments of the four victims, and Simpson confessed to his participation in those robberies. Although Simpson claimed he was coerced by Cobo, the jury was instructed on the defense of duress and rejected it. The fact that Simpson lived off of the money and items recovered from the victims' apartments, and that he later had the strength to assault Cobo and escape from him, undercut his argument that he was under duress. Furthermore, evidence recovered from the crime scenes indicated that the murders required substantial effort and strongly suggested the involvement of two different assailants. Resp. Mem. at Exh. C, p. 72. Any error committed by the trial court in admitting the statements of Cobo was not sufficiently injurious to the verdict. Therefore, this Court is without jurisdiction to review Simpson's petition.
C. Procedural Bar
In the interests of comity and federalism, a federal court is required "to honor a state holding that is a sufficient basis for the state court's judgment." Sutherland v. Walker, 1999 WL 1140870, at *8 (S.D.N.Y. Dec. 10, 1999) ( citing Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990)). The state court must "`clearly and expressly' state that its ruling rests on a state procedural bar," or the federal court will presume jurisdiction to review. Harris v. Reed, 489 U.S. 255, 263 (1989) (citations omitted); see also Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1991). This presumption of review will only be applied where "it fairly appears that a state court judgment rested primarily on federal law or was interwoven with federal law, that is, in those cases where a federal court has good reason to question whether there is an independent and adequate state ground for the decision." Coleman v. Thompson, 501 U.S. 722, 739 (1991). To qualify as an independent and adequate state law ground, the reasoning behind the state court decision must be "firmly established and regularly followed. . . ." Ford v. Georgia, 498 U.S. 411, 423-24 (1991). If there is an independent and adequate state law ground for the state court's decision, the federal court is procedurally barred from reviewing the decision. Wainwright v. Sykes, 433 U.S. 72, 82 (1977), citing Brown v. Allen, 344 U.S. 443, 486-87 (1953).
A review of the record indicates that the trial court did not discuss or implicate any federal right in its decision on the evidence. Tr. at 2204-05. The Appellate Division relied on state law in finding that the testimony regarding Cobo's statements was properly admitted because Simpson's "counsel opened the door to [the] testimony by arguing that the codefendant had called the police and turned defendant in, and by indicating that he would challenge the propriety of defendant's arrest." Simpson, 682 N.Y.S.2d at 377 ( citing People v. Blakeney, 88 N.Y.2d 1011, 1012 (1996)). The court relied on state law in finding that the witness testimony was not hearsay because it was "offered not for the truth of its content but to evidence the fact that the statement was made." People v. Davis, 58 N.Y.2d 1102, 1103 (1983). The court stated that the "the jury is presumed to have followed the court's instruction . . ." to disregard the statements, Simpson, 682 N.Y.S.2d at 377 ( citing People v. Davis, 58 N.Y.2d at 1104), and it also indicated that the testimony was properly admitted because it explained how the police came to suspect Simpson of the crimes. Id. ( citing People v. Canty, 617 N.Y.S.2d 169 (App.Div. 1994) (accomplice's statement admissible if introduced not for its truth but to demonstrate the propriety of police conduct)). The cases relied upon by the Appellate Division are "firmly established and regularly followed." Ford v. Georgia, 498 U.S. at 423-24; see People v. Clark, 731 N.E.2d 1105, 1106 (N.Y. 2000); People v. Zimmerman, 243 A.D.2d 747, 748 (N.Y. A.D. 1997). Because the record demonstrates that the New York courts adjudicated Simpson's constitutional claim on independent and adequate state law grounds, this Court is barred from reviewing that decision.
D. Review on the Merits
"[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." Estelle v. McGuire, 502 U.S. at 67-68. Rather, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States. Id. The Supreme Court has ruled that pursuant to 28 U.S.C. § 2254(d), as amended by AEDPA, a writ of habeas corpus may only issue if "the state-court adjudication resulted in a decision that (1) was contrary to clearly established Federal law, as determined by the Supreme Court of the United States, or (2) involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States." Williams v. Taylor, 529 U.S. 362, 412 (2000) (citations omitted).
A state court decision is "contrary to" federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law" or if it "decides a case differently than [the] Court has on a set of materially indistinguishable facts." Id. at 413. It involves an "unreasonable application" of Supreme Court precedent "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case" Id. Finally, "clearly established Federal law, as determined by the Supreme Court of the United States" refers only to Supreme Court "holdings, as opposed to the dicta, of [the] Court's decisions as of the time of the relevant statecourt decision." Id. at 412. State judicial determinations are now afforded even more deference than before the passage of the AEDPA. Rodriguez v. Bennett, 1998 WL 765180, *3 (S.D.N.Y. 1998).
"[T]he right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him secured by the Sixth Amendment." Bruton v. United States, 391 U.S. 123, 126 (1968) (citations and internal quotations omitted). When a non-testifying accomplice's statement is admitted for the truth against a criminal defendant, the defendant's Sixth Amendment right has been violated. Id., at 136; Cruz v. New York, 481 U.S. 183, 196 (1987). However, at Simpson's trial, the state court admitted the testimony of Cobo not for the truth but to show how the police formed probable cause to arrest him. Therefore, the statements did not constitute inadmissible hearsay. See Tennessee v. Street, 471 U.S. 409, 413 (1985). Simpson argues that the admission of the officers' testimony led the jury to believe that police had evidence of Simpson's guilt. The state court ruled that Simpson had "opened the door" to this testimony by indicating in his opening statement that Cobo had turned Simpson in and indicating that he would challenge the propriety of defendant's arrest.
The respondent argues that even if the admission was in error, any prejudice was corrected by the trial judge's charge to the jury to disregard the testimony. However, "[t]he naive assumption that prejudicial effects can be overcome by instructions to the jury all practicing lawyers know to be unmitigated fiction." Bruton, 391 U.S. at 129 ( citing Krulewitch v. United States, 336 U.S. 440, 453 (1949)). In any event, this Court finds that on the merits, the admission of the testimony did not violate the Constitution or established Supreme Court precedent, and therefore, petitioner's claim fails on the merits.
IV. CONCLUSION
For the reasons stated above, this Court finds that Simpson's petition is procedurally barred from review, and also that if the claims were addressed on the merits, the petition would fail. The Court therefore recommends that the petition be DISMISSED in its entirety.
Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Laura Taylor Swain, 40 Centre Street, Room 426, and to the chambers of the undersigned, 500 Pearl Street, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989) ( per curiam ); 28 U.S.C. § 636(b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).