Opinion
97-CR-233A.
November 15, 2000.
ORDER
This case was referred to Magistrate Judge Leslie G. Foschio pursuant to 28 U.S.C. § 636(b)(1), on March 30, 1998. On February 22, 2000, defendant filed a motion to dismiss the indictment and to suppress evidence, or in the alternative, for an evidentiary hearing. On June 19, 2000, Magistrate Judge Foschio filed a Report and Recommendation, recommending that defendant's motion be denied. Defendant filed objections to the Magistrate Judge's Report and Recommendation on July 19, 2000, and the government filed a response thereto on August 8, 2000. Defendant filed a Supplemental Memorandum in support of his objections on October 13, 2000, and the government filed an affidavit in response thereto on October 18, 2000. Oral argument on the objections was held on October 18, 2000.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions and hearing argument from the parties, the Court adopts the proposed findings of the Report and Recommendation. The Court finds unpersuasive defendant's argument that he should be afforded an evidentiary hearing. Defendant basically seeks such a hearing on two issues: (1) on the extent of defendant's contacts with this Country for purposes of asserting the protections of the Fourth Amendment; and (2) on whether Canadian authorities were acting as agents of the Federal Bureau of Investigation ("'FBI") when they conducted the disputed searches. With regard to the first issue, an evidentiary hearing is not needed as this information is already in defendant's possession. The defendant should obviously be fully aware of his own contacts with the United States and has presented evidence in that regard. The Magistrate found, and this Court agrees, that under the test in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), defendant's contacts with the United States were insufficient for purposes of allowing him to invoke the protections of the Fourth Amendment. Because the Fourth Amendment does not apply to the disputed searches in this case, the Court need not reach the issue of whether Canadian authorities were acting as agents of the FBI at the time of those searches. Even if the Court were to reach that issue, however, defendant still would not be entitled to an evidentiary hearing based on the facts and circumstances present here. Although there was contact between the FBI and Canadian authorities prior to the disputed searches, defendant has come forth with no evidence indicating that the Canadian authorities were somehow being controlled or manipulated by the FBI. There is not even a threshold showing to that effect. In fact, all the evidence in the record indicates that the Canadian investigation of defendant was commenced independently prior to any involvement by the FBI. An evidentiary hearing at this point would simply be a fishing expedition.
Accordingly, for the reasons set forth in Magistrate Judge Foschio's Report and Recommendation and herein, defendant's motion to dismiss and to suppress evidence, or alternatively, for an evidentiary hearing is denied. The Clerk of Court shall mail a copy of this Order to counsel for all parties in this case. All counsel shall appear before the Court on November 17, 2000 at 9:00 a.m. for a meeting to set a trial date.
IT IS SO ORDERED.