Prosecutors seek to vacate reports critical of DEA drug arrest - The Buffalo News

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Prosecutors seek to vacate reports critical of DEA drug arrest

When Brandon Dell pleaded guilty last week, a federal judge reminded him of the reports, two of them, raising questions about the legality of his arrest.

The judge also wondered if Dell knew about the government's efforts to void the reports and their criticism of federal agents investigating the drug case.

In the reports, U.S. Magistrate Judge H. Kenneth Schroeder Jr. called Dell's 2014 arrest "unlawful" and recommended evidence and statements in the case be suppressed.

Now, as part of their plea deal with Dell, federal prosecutors are asking the court to void those criticisms.

"The government wants to vacate my report and recommendation as if it never existed," Schroeder told Dell at one point last week.

While vacating the reports wouldn't affect Dell's sentence, it would mean defense lawyers in future cases would not be able to cite Schroeder's criticisms when trying to undermine the work of federal agents.

Federal prosecutors would not comment on the request or the judge's criticism but, in court papers, defended the actions of the Drug Enforcement Administration agents who arrested Dell that day in February 2014.

They claim Dell was a suspect in a major undercover investigation and, at the time of his arrest, was viewed as a potentially armed and dangerous drug dealer.

Schroeder, in the reports, said the agents were justified in stopping Dell's car that day but stepped over the line when they handcuffed and detained him while attempting to establish probable cause for his arrest.

The judge said "when handcuffs are used in the absence of probable cause," the next questions are whether the suspect posed a threat and whether handcuffs were the only way to protect against that threat.

"The answer to both those questions is a resounding no," Schroeder said of the events leading to Dell's arrest.

In taking issue with the arrest, Schroeder also raised questions about the cocaine found in one of Dell's backpacks. He said the drugs were discovered without a warrant and recommended the evidence be suppressed.

Dell's lawyers, assistant federal public defenders Leslie Scott and Martin Vogelbaum, would not comment on the government's efforts to vacate Schroeder's reports, except to acknowledge that their client agreed not to oppose it as part of his plea deal.

"We're going to stand silent," Scott told Schroeder.

Scott said her client decided to take a plea deal because of other evidence linking him to drug dealing and weapons possession. He ended up pleading guilty to possession of a firearm in furtherance of drug trafficking and admitted possessing more than a pound of cocaine.

Dell, who was prosecuted with his girlfriend, Shannon K. Moses, will face a recommended sentence of five years in prison when he appears before U.S. District Judge William M. Skretny. Moses, who also took a plea deal, faces up to six months in prison.

From the start of the case, prosecutors argued that Dell's arrest was by the books and pointed to their suspicion that he was a large-scale cocaine dealer.

They also claim Dell's arrest coincided with the DEA's search of his girlfriend's home, and there were concerns that Dell might be armed and inclined to harm agents conducting the search had he not been detained.

One of the agents, in fact, testified earlier this year that, "the last thing I would do when there's a live scene is to let a potential suspect go."

In court papers, Assistant U.S. Attorney Patricia Astorga repeated that claim and said the agent, "was absolutely not satisfied that there were no drugs or weapons on the defendant."

Schroeder disagreed and recommended Dell's statements to investigators be suppressed.

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