U.S. v. Rivera-Marrero

Full title: UNITED STATES OF AMERICA, Plaintiff, v. FREDDY RIVERA-MARRERO, Defendant

Court: United States District Court, D. Puerto Rico

Date published: Jan 9, 2006

Criminal Case No.:05-116 (DRD) (D.P.R. Jan. 9, 2006)

Opinion

Criminal Case No.:05-116 (DRD).

January 9, 2006

ORDER

DANIEL DOMINGUEZ, District Judge

Pending before the Court are defendant, Freddie Rivera-Marrero's Motion by Defendant Freddie Rivera-Marrero for Order Directing the United States to Return Seized Property Under Fed.R.Crim.P. 41(g), or, Alternatively, for an Evidentiary Hearing; and Memorandum of Points and Authorities; Defendant Freddie Rivera-Marrero's Motion to Suppress; and Supplemental Motion. (Docket Nos. 15, 20, and 23, respectively). Through said motions, Rivera moves the Court for the return of property seized subsequent to his arrest and the suppression of statements made by him at the time of said arrest. During the Pre Trial Hearing held on June 27, 2005, the Court ordered that the aforementioned pending motions be referred to a Magistrate Judge. Subsequently, on July 6, 2005, the referral was assigned to Magistrate Judge Aida Delgado Colon. Accordingly, a Suppression Hearing was held on August 2, 2005 and simultaneous legal memoranda were filed thereafter. Finally, on November 2, 2005, Magistrate Judge Aida Delgado Colon issued her Report and Recommendation ("RR"). (Docket No. 42). In a thorough report, the Magistrate recommended that defendant Freddy Rivera Marrero's motion for an order directing the United States to return seized property pursuant to Fed.R.Crim.P. 41(g) (Docket No. 15), as well as his request to suppress and his supplemental motion to said request (Docket Nos. 20, and 23) be denied. Defendant timely filed his objection to the RR on November 17, 2005. (Docket No. 45). The Government timely replied on November 25, 2005. (Docket No. 46).

The Magistrate correctly and clearly pointed out that any objections to the RR must be filed with the Clerk of Court within ten (10) days after being served with a copy thereof. See also Fed.R.Civ.P. 72(b) and Local Rule 72.1(b). Pursuant to Fed.R.Civ.P. 72(b), "[a]bsent objection by the plaintiffs, the district court had a right to assume that plaintiffs agreed to the magistrate's recommendation." Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1^st Cir.), cert. denied, 474 U.S. 1021 (1985). Moreover, "[f]ailure to raise objections to the Report and Recommendation waives that party's right to review in the district court and those claims not preserved by such objection are precluded on appeal." Davet v. Maccarone, 973 F.2d 22, 30-31 (1^st Cir. 1992). See also Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1^st Cir. 1994) (holding that objections are required when challenging findings actually set out in magistrate's recommendation, as well as magistrate's failure to make additional findings); Lewry v. Town of Standish, 984 F.2d 25, 27 (1^st Cir. 1993) (stating that "[o]bjection to a magistrate's report preserves only those objections that are specified".); Keating v. Secretary of H.H.S., 848 F.2d 271, 275 (1^st Cir. 1988); Borden v. Secretary of H.H.S., 836 F.2d 4, 6 (1^st Cir. 1987) (holding that appellant was entitled to a de novo review, "however he was not entitled to a de novo review of an argument never raised"). See generally United States v. Valencia, 792 F.2d 4, 6 (1^st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1^st Cir. 1980).

After conducting a de novo review of the record, the Court has found that the RR thoroughly and correctly addressed the issues presented by the defendant. See Gioiosa v. United States, 684 F.2d 176 (1^st Cir. 1982) (district court was required to make a de novo determination of those portions of magistrate's report objected to, which recommended that a habeas corpus petition be denied); but see Paterson-Leitch v. Massachusetts Elec., 840 F.2d 985, 990-91 (1^st Cir. 1988) ("At most, the party aggrieved is entitled to a review of the bidding rather than to a fresh deal. The rule does not permit a litigant to present new initiatives to the district judge. We hold categorically that an unsuccessful party is not entitled as of right to de novo review by the judge of an argument never seasonably raised before the magistrate.").

In addition, the averments raised by defendant in the objections to the RR fail to state any new facts or new case law in support of his previous arguments. Thus, following the words of wisdom of the First Circuit Court of Appeals, "when a lower court produces a comprehensive, well-reasoned decision, an appellate court should refrain from writing at length to no other end than to hear its own words resonate," the Court ADOPTS in toto the Magistrate's excellent RR. See Lawton v. State Mut. Life Assur. Co. of Am., 101 F.3d 218, 220 (1^st Cir. 1996). See In re San Juan Dupont Plaza Hotel Fire Litig., 989 F.2d 36, 38 (1^st Cir. 1993) ("Where, as here, a trial court has produced a first-rate work product, a reviewing tribunal should hesitate to wax longiloquence simply to hear its own words resonate."). Notwithstanding, the Court addresses a few salient issues.

Defendant objects to the Magistrate's RR on the following grounds: (1) law enforcement officers' lacked articulable facts upon which to justify a warrantless entry into the residence to perform a protective sweep; (2) the consent to search provided by Lucia Rodriguez-Pilarte was tainted by the illegal entry into the premises; and (3) defendant Rivera has standing to challenge the validity of the search to the Ford Explorer. Defendant, notwithstanding, failed to articulate any new argument outside of those already made in the previous requests to suppress. Defendant merely rehashed the arguments already raised thereto.

The Court finds that the Magistrate correctly concluded that the evidence before the Court was sufficient to find that the United States did not participate in the warrantless entry into the defendant's residence.¹ Moreover, there is also enough evidence in the record to conclude that the sweep performed by the agents was appropriate provided that the agents had previous knowledge of, not only defendant being a fugitive, but of his habit of carrying weapons and of him not being alone in the residence.² Furthermore, the Court agrees with the Magistrate's consideration of the evidence that ultimately led her to conclude that all consents provided where obtained legally, and not tainted or under duress as is defendant's objection.³ Finally, as the record shows, Rivera lacks standing in order to challenge the validity of the search of the Ford Explorer as he does not have a reasonable expectation of privacy in relation to it provided that he is neither the owner nor was in exclusive possession of the vehicle.⁴ Consequently, there are no legal issues that would move the Court to reason that the Magistrate's RR is erroneous. The Court, hence, agrees with the Magistrate's well reasoned recommendation sustaining that defendant's motions are meritless.

1 See Government's Exhibit 1 of the Suppression Hearing.

2 The Court reaches this conclusion pursuant to Agent Miguel Martinez's testimony wherein he received information, later corroborated, that defendant Rivera-Marrero continued to be involved in drug dealings and was always armed during and in the course of said drug dealings.

3 See Government's Exhibits 6(a), 7(a), and 9 together with Agent Martinez, Deputy U.S. Marshal Manny Varela, and Deputy U.S. Marshal Roberto Vizcarrondo's testimonies as juxtaposed to Luz Rodriguez-Pilarte's (Rivera-Marrero's common law wife) testimony.

4 Ibid, see also Government's Exhibit 8, as well as Rodriguez's own testimony at the hearing explaining that the ownerships of the various vehicles at issue belong to people other than defendant Rivera Marrero and that Rivera Marrero held no title or possessory interest in them.

The Court need not go further for it refuses to write "at length to no other end than to hear its own words resonate" as to the instances alleged as errors by plaintiff. They were all correctly analyzed with references to the record by the Magistrate Judge. See Lawton v. State Mut. Life Assur. Co. of Am., 101 F.3d at 220. "Where, as here, a [Magistrate] has produced a first-rate work product, a reviewing tribunal should hesitate to wax longiloquence simply to hear its own words resonate." In re San Juan Dupont Plaza Hotel Fire Litig., 989 F.2d at 38. Therefore, the Court ADOPTS in toto the Magistrate's RR.

IT IS SO ORDERED.