USA v. Busch et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
v.
Cody Busch, et al,
Defendants.
Hon. Hugh B. Scott
09CR331A
Order
Commencing February 5, 2013, the Court has conducted evidentiary hearings on
numerous issues raised the defendants various respective omnibus motions. Among under issues
raised, the defendants have sought hearings on: (1) various confirmation identifications; (2) the
search of 28 California Street; and (3) the seizure of a cell phone.
Confirmatory Identifications
Some defendants, including defendants Lopez (Docket No. 730) and Matthew Deynes
(Docket No. 737), seek evidentiary hearings relating to “confirmatory identifications” in which
persons who allegedly possess prior familiarity with the defendants, identified the defendants
from single photographs presented to them by various police officers.
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It appears that the government obtained identifications of various defendants from
confidential witnesses identified as: Witness No. 1, Witness No. 2, Witness No. 3, Witness No.
6, Witness No. 8, and Witness No. 9. The government maintains that these individuals were
shown various numbers of photographs, between 25 and “3 books of photos” to identify
members of the purported 10 Street Gang, or other street gangs. According to the government,th
Witness No. 6 was not shown any photographs and no identification procedures were utilized
with this witness. (Docket No. 760 at pages 28-29). With respect to Witness No. 1 and Witness
No. 2, the government asserts that these individuals have pled guilty and entered into cooperation
agreements with the government. The government asserts that Witness No. 3 “is friends with”
defendants Delgado and Thurmond, that Witness No. 8 is a self-identified member of the 10th
Street Gang, and that Witness No. 9 alleges that he “grew up” with Mathew Deynes and alleged
members of the 10 Street Gang. (Docket No. 760 at pages 25-29).th
Defendant Lopez does not identify any allegedly suggestive procedure used in any of
these identification procedures, but seeks a hearing regarding the witnesses’ opportunity to view
the defendant; the level of attention of the witness in observing the defendant; the accuracy of the
description; the level of certainty; and the time between the date of the alleged offense and the
identification. (Docket No. 730 at page 7). Defendant Matthew Deynes asserts only that because
the witnesses were shown only “single pictures,” and presumably not photo arrays, that the
procedures were unnecessarily suggestive. (Docket No. 737 at ¶ 9).
Evidentiary hearings pursuant to United States v. Wade, 388 U.S. 218 (1967) are not
required with respect to confirmatory identifications where the witness is sufficiently familiar
with the defendant so as to negate the possibility of suggestiveness. See Sides v. Senkowski, 281
F.Supp.2d 649 (W.D.N.Y. 2003)(the trial court may dispense with a Wade hearing if the
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identification is merely “confirmatory” because the parties knew each other previously).
Inasmuch as the identities of these witnesses is not yet known to the defendants, the defendants
have not raised a question of fact arises as to whether the witnesses were actually familiar with
the defendants they identified. For the protection of the witnesses, in light of the extreme
violence alleged in this case, in the event a factual questions as to the witnesses’ familiarity with
the defendants arises, the Court defers any hearing regarding that issue to be held by the District
Judge (or the undersigned upon specific referral) after the identity of the witnesses have been
disclosed at the time of trial.
Other Issues
Defendant Matthew Deynes seeks to suppress the evidence obtained as a result of the
search of 28 California Street, Buffalo, New York. The sole issue raised by the defendant is
whether probable cause existed to support the issuance of a search of the lower apartment at 28
California Street where Matthew Deynes resided with his girlfriend. (Docket No. 546). The
search warrant and application were submitted to the Court for in camera review. Similarly,
defendant Cody Busch seeks suppression of evidence obtained from a cellular telephone (716-
909-3326) which was obtained pursuant to a warrant issued by Magistrate Judge H. Kenneth
Schroeder dated December 1, 2009 (Docket No. 736 at ¶¶ 3-4). Again, the search warrant and
application materials have been presented for in camera review. In both cases, the defendants
have failed to identify a specific issue relating to the search warrants which would require an
evidentiary hearing. The defendants have not articulated any basis to conclude that the Court
could not determine the existence of probable cause based upon a review of the search warrant
application. In light of the above, the defendants’ respective requests for hearings relating to
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these warrants is denied at this time.
So Ordered.
/ s / Hugh B. Scott
United States Magistrate Judge
Western District of New York
Buffalo, New York
February 12, 2013
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