Opinion
03-CR-6044T(P).
February 17, 2005
ORDER
Defendants Florencio Padin, Melvin Flecha-Mendoza ("Flecha-Mendoza"), Luis Padin, Guillermo Bonilla ("Bonilla"), Edwin Pagan ("Pagan"), Domingo Rosa ("Rosa") and Jose Diaz ("Diaz") (collectively "defendants"), are charged in a twenty-five count superseding indictment with, inter alia, conspiracy to possess with intent to distribute heroin and cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 841(b)(1)(C) and 846. In addition, defendant Florencio Padin is charged with possession of an illegal shotgun in furtherance of a drug trafficking crime in violation of 18 U.S.C. §§ 924(c)(1)(A) and 924 (c)(1)(B)(i), 26 U.S.C. §§ 5845 (a), 5861(d) and 5871, as well as being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(A)(2).
For determination are four motions: (1) a motion by Bonilla to suppress a photographic identification made by a government witness on February 26, 2002; (2) motions by Flecha-Mendoza, Pagan, Luis Padin and Diaz to suppress a photographic identification made by a government witness on May 29, 2003; (3) a motion by Diaz to suppress statements he made subsequent to his arrest on May 14, 2004; and (4) a motion by Diaz to suppress evidence obtained pursuant to wiretap authorizations issued by Judge Larimer on January 23, 2003 and February 6, 2003. Magistrate Judge Marian Payson recommended by Report and Recommendation issued January 13, 2005, that: (1) Bonilla's motion to suppress the February 26, 2002 photo identification be denied; (2) the procedure employed during the May 29, 2003 identification was unduly suggestive, and thus a hearing is necessary to determine whether the government witness had a sufficient independent recollection of the identified defendants; (3) Diaz's motion to suppress statements made subsequent to his arrest be denied; and (4) Diaz's motion to suppress evidence obtained pursuant to the wiretap authorizations be denied.
None of the parties formally objects to Magistrate Judge Payson's findings and recommendations. Having reviewed the Report and Recommendation and the entire record de novo (See 28 U.S.C. § 636(b)(1)), I hereby adopt Magistrate Judge Payson's January 13, 2005 Report and Recommendation in its entirety. Accordingly, it is hereby ordered that: (1) Bonilla's motion to suppress the February 26, 2002 photo identification is denied; (2) the parties shall contact Judge Payson to schedule a hearing to determine whether the government witness had a sufficient independent recollection of the identified defendants; (3) Diaz's motion to suppress statements made subsequent to his arrest is denied; and (4) Diaz's motion to suppress evidence obtained pursuant to the wiretap authorizations is denied.
Three documents were filed on behalf of defendants subsequent to the issuance of Magistrate Judge Payson's January 13, 2005 Report and Recommendation, namely: (1) "Letter Memorandum" submitted on behalf of Melvin Flecha-Mendoza (Doc. No. 191); (2) "Closing Argument/Response" submitted on behalf of Luis Padin (Doc. No. 192); and (3) "Letter Memorandum" submitted on behalf of Jose Diaz (Doc. No. 193). Although these documents were filed after the January 13, 2005 Report and Recommendation was filed, they are not styled as objections to the Report and Recommendation since they were in fact submitted to and considered by Magistrate Judge Payson prior to making her final findings and recommendations.
ALL OF THE ABOVE IS SO ORDERED.