USA v. Perez

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
REPORT AND
RECOMMENDATION
v.
6:25-CR-06009 CJS
JULIO PEREZ,
Defendant.
INTRODUCTION
Defendant Julio Perez (“Perez”) is charged by Indictment returned on January
21, 2025, with possession of fentanyl with intent to distribute in violation of 18 U.S.C.
§ 841(a)(1) and (b)(1)(C). (Dkt. 18). This matter has been referred to me to address all
pre-trial matters, “including all pre-trial matters that a Magistrate Judge may hear
and determine pursuant to 28 U.S.C. Section 636(b)(1)(A), and those which a
Magistrate Judge may hear and thereafter file a report and recommendation for
disposition pursuant to Section 636(b)(1)(B).” (Dkt. 20).
Perez has filed pre-trial motions seeking the following: (1) inspection of grand
jury minutes; (2) a bill of particulars; (3) discovery pursuant to Federal Rule of
Criminal Procedure 16; (4) disclosure of Brady1 material; (5) disclosure of witness
statements and Jencks Act materials; (6) suppression of statements; (7) disclosure of
evidence pursuant to Federal Rules of Evidence 404(b), 608, and 609; (8) production
1 	Brady v. Maryland, 373 U.S. 83 (1963).
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of Giglio 2 material; (9) to preclude evidence described in Field Interview Forms
(“FIFs”) and Crime Investigation Reports (“CIRs”); (10) release of the disciplinary
records of the investigating and arresting officers; and (11) preservation of rough
notes. (Dkt. 31). The government has opposed Perez’s motions. (Dkt. 32).
I held oral argument on Perez’s motions on June 26, 2025. (Dkt. 33). At that
time, the defense requested an opportunity to submit supplemental briefing with
respect to the motion to suppress statements. I set a deadline of July 10, 2025, for the
filing of a supplemental brief and reserved decision on Perez’s motions. (Id.). On July
14, 2025, defense counsel advised the Court that the defense would not be making
any further submissions. (Dkt. 34). I accordingly took Perez’s motion to suppress
under advisement as of July 10, 2025. (Id.).
For the reasons set forth below, I recommend that the District Judge deny
Perez’s motion for suppression of statements and Perez’s motion for inspection of
grand jury minutes. 3
BACKGROUND
On May 7, 2018, Perez pleaded guilty in this District to one count of possession
with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and
851. United States v. Perez, No. 6:18-CR-6059 CJS, Dkt. 5 (W.D.N.Y. May 7, 2018).
Perez was subsequently sentenced to 60 months of imprisonment and six years of
supervised release. United States v. Perez, No. 6:18-CR-6059 CJS, Dkt. 15 (W.D.N.Y.
2 	Giglio v. United States, 405 U.S. 150 (1972).
3 	My resolution of Perez’s remaining motions is set forth in a contemporaneously
issued Decision and Order.
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Sept. 14, 2018). Perez was released to supervision on January 14, 2022.
On 	June 	26, 	2024, 	law 	enforcement 	executed 	a 	state-authorized 	search
warrant at Perez’s residence at 38 Harris Street, Rochester, New York. (See Dkt. 32
at 1). In Perez’s bedroom and ensuite bathroom, which were located in the basement,
law enforcement located 25.61 grams of fentanyl and approximately $10,000 in
United States currency. (Id.). The fentanyl was found secreted in an area in the
ceiling above the ensuite bathroom. (Id.).
During the afternoon of June 26, 2024, Perez called United States Probation
Officer Ryan Varecka in a panic and stated in sum and substance that he had “messed
up,” and that the police had just searched his house and took his truck and money,
but did not find any guns. (Id. at 10). Officer Varecka asked Perez what the police
found, and Perez replied that the police found drugs in the house, that he did not
know what kind of drug it was, and that it was possibly fentanyl. (Id. at 10-11). For
several days after the search warrant was executed, Perez called Officer Varecka
daily to ask if he should turn himself in to be arrested. (Id. at 11).
DISCUSSION
I. 	Motion to Suppress Statements
In his motion, Perez stated:
[T]he discovery provided indicates [Perez] was mirandized and waived
his right to provide a statement. However, there was no documentation
provided by the government evidencing any statement purportedly
made by [Perez]. If Perez did provide a statement to police then the
defense requests the Court to Order its disclosure to the defense.
Additionally, 	should 	the 	prosecution 	subsequently 	disclose 	alleged
statements Perez made the defense respectfully requests permission
from the Court to file future motions.
(Dkt. 31 at 18). In response, the government disclosed the statements made by Perez
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to Officer Varecka, which are set forth above. (Dkt. 32 at 10-11). At oral argument, I
asked if the defense wished to make a supplemental filing regarding the statements
disclosed by the government. Defense counsel stated that she would supplement the
motion orally, and argued that the statements were given involuntarily and that the
Court should hold a hearing to address the matter of voluntariness. I noted that the
government had argued in part that Perez had failed to make a sworn statement
regarding voluntariness so as to raise an issue of fact, and inquired as to whether the
defense was requesting an opportunity to make such a submission. Defense counsel
stated that the defense was requesting such an opportunity, and I set July 10, 2025
as the deadline for the defense’s supplemental submission. However, the defense
ultimately opted not to make a supplemental submission.
On the record before me, I conclude that no hearing is warranted with respect
to Perez’s motion to suppress statements. “[A]n evidentiary hearing on a motion to
suppress ordinarily is required if the moving papers are sufficiently definite, specific,
detailed, and nonconjectural to enable the court to conclude that contested issues of
fact going to the validity of the search are in question.” United States v. Pena, 961
F.2d 333, 339 (2d Cir. 1992) (quotation and citation omitted). “In order to warrant a
suppression hearing, the defendant must demonstrate a specific factual dispute that
can be resolved by a hearing.” United States v. Richardson, No. 09-CR-55A SR, 2010
WL 5553995, at *1 (W.D.N.Y. Dec. 9, 2010), adopted, 2011 WL 53476 (W.D.N.Y. Jan.
7, 2011). “An attorney’s affidavit made without personal knowledge is insufficient to
create an issue of fact requiring an evidentiary hearing.” United States v. Tata, No.
11-CR-6083 CJS, 2011 WL 7004205, at *1 (W.D.N.Y. Nov. 21, 2011), adopted, 2012
WL 92558 (W.D.N.Y. Jan. 11, 2012). “In the absence of a demonstrated issue of fact,
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‘there is no basis for holding an evidentiary hearing or suppressing the evidence.’”
United States v. Vandegrift, No. 18-CR-6044W, 2019 WL 2165566, at *2 (W.D.N.Y.
Mar. 15, 2019) (quotation omitted), adopted, 2019 WL 2163536 (W.D.N.Y. May 17,
2019).
In support of his motion to suppress statements, Perez submitted only the
affidavit of his attorney, who was not present at the time the relevant statements
were made. He was given an opportunity to submit his own affidavit, but did not do
so. Accordingly, Perez has not demonstrated the existence of any issue of fact that
could be resolved by a hearing, and no hearing is warranted.
Perez’s papers and the supplemental arguments made by his attorney also do
not demonstrate that suppression is warranted as a matter of law. The requirements
of Miranda v. Arizona, 384 U.S. 436 (1966), apply only to custodial interrogation. See,
e.g., United States v. Newton, 369 F.3d 659, 669 (2d Cir. 2004). Perez’s phone calls to
Officer Varecka do not satisfy this requirement. See Minnesota v. Murphy, 465 U.S.
420, 430, 433 (1984) (holding that defendant was not in custody for purposes of
Miranda when he reported to his probation officer’s office in response to a letter the
probation officer had sent him and stating that “[e]ven a cursory comparison of
custodial interrogation and probation interviews reveals the inaptness of the . . .
analogy to Miranda.”). Nor has Perez otherwise demonstrated that his statements
were compelled.
For these reasons, I recommend that the District Judge deny Perez’s motion
for suppression of statements.
II. 	Motion to Inspect Grand Jury Minutes
Perez moves for “an order requiring the Government to produce for inspection
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and copying the transcript of the testimony of all witnesses who appeared before the
Grand Jury in connection with this Indictment . . . on the grounds there was
insufficient legal evidence to support the allegations against him contained in the
Indictment.” (Dkt. 31 at 3). In the alternative, Perez asks that the Court “review the
Grand Jury minutes in camera to determine whether dismissing the charged counts
based on insufficient evidence introduced before the Grand Jury to support such
charges.” (Id. at 4). Because Perez’s motion appears to seek in part dismissal of the
Indictment based on insufficient evidence, I address it via recommendation.
Grand jury proceedings are “accorded a presumption of regularity, which
generally may be dispelled only upon particularized proof of irregularities in the
grand jury process.” United States v. R. Enters., Inc., 498 U.S. 292, 301 (1991)
(quoting United States v. Mechanik, 475 U.S. 66, 75 (1986) (O’Connor, J., concurring
in the judgment)). “The court may authorize disclosure—at a time, in a manner, and
subject to any other conditions that it directs—of a grand-jury matter . . . at the
request of a defendant who shows that a ground may exist to dismiss the indictment
because 	of 	a 	matter 	that 	occurred 	before 	the 	grand 	jury.” 	Fed. 	R. 	Crim. 	P.
6(e)(3)(E)(ii). However, “[g]rand jury proceedings are presumptively secret, and a
defendant seeking the disclosure of grand jury materials bears a heavy burden.”
United States v. Schlegel, 687 F. App’x 26, 30 (2d Cir. 2017).
Here, the defense contends that it needs access to the grand jury minutes
because it suspects there was inadequate evidence to support the charge in the
Indictment. “But neither the Fifth Amendment nor any other constitutional provision
prescribes the kind of evidence upon which grand juries must act.” Costello v. United
States, 350 U.S. 359, 362 (1956). The Supreme Court has held that it “would run
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counter to the whole history of the grand jury institution to permit an indictment to
be challenged on the ground that there was inadequate or incompetent evidence
before the grand jury.” United States v. Williams, 504 U.S. 36, 54 (1992) (quotations
omitted). Consistent with these principles, “[a] district court may not dismiss a
facially valid indictment based upon a charge of insufficient evidence.” United States
v. Piedrahita, 791 F. Supp. 418, 420 (S.D.N.Y. 1992).
Beyond generally asserting that the evidence before the grand jury was likely
legally insufficient to support the charge in the Indictment, Perez has made no
showing of any irregularity in the grand jury’s proceedings, nor that “a ground may
exist to dismiss the indictment because of a matter that occurred before the grand
jury.” Fed. R. Crim. P. 6(e)(3)(E)(ii). I accordingly conclude that Perez has not met his
heavy 	burden 	of 	demonstrating 	that 	disclosure 	of 	the 	grand 	jury 	minutes 	is
warranted in this case. Nor is there any basis for the Court to perform an in camera
review of the grand jury minutes or to dismiss the Indictment based on insufficient
evidence. I accordingly recommend that the District Judge deny this motion.
CONCLUSION
For all the foregoing reasons, I recommend that the District Judge deny Perez’s
motions for suppression of statements and for inspection of the grand jury minutes
and/or dismissal of the Indictment.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ORDERED that this Report and
Recommendation be filed with the Clerk of Court.
Any objections to this Report and Recommendation must be filed with the
Clerk of Court within fourteen days of service of this Report and Recommendation in
accordance with the above statute, Federal Rules of Criminal Procedure 45 and 59(b),
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and Local Rule of Criminal Procedure 59. 4
Failure to file objections, or to request an extension of time to file
objections, 	within 	fourteen 	days 	of 	service 	of 	this 	Report 	and
Recommendation waives the right to appeal the District Court’s Order. See
Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile,
P.C., 596 F.3d 84, 92 (2d Cir. 2010).
The District Judge will ordinarily refuse to consider de novo arguments, case
law, and/or evidentiary material which could have been, but were not, presented to
the Magistrate Judge in the first instance.
Pursuant to Local Rule of Criminal Procedure 59(c)(2), written objections “shall
specifically identify the portions of the proposed findings and recommendations to
which objection is made and the basis for each objection, and shall be supported by
legal authority.” Failure to comply with these provisions may result in the
District Judge’s refusal to consider the objection.
SO ORDERED.
_______________________________
COLLEEN D. HOLLAND
United States Magistrate Judge
DATED: 	July 28, 2025
Rochester, New York
4 	Counsel is advised that a new period of excludable time pursuant to 18 U.S.C.
§ 3161(h)(1)(D) commences with the filing of this Report and Recommendation. Such
period 	of 	excludable 	delay 	lasts 	only 	until 	objections 	to 	this 	Report 	and
Recommendation are filed or until the fourteen days allowed for filing objections has
elapsed. See United States v. Andress, 943 F.2d 622 (6th Cir. 1991); United States v.
Long, 900 F.2d 1270 (8th Cir. 1990).
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