New ruling sought on evidence in bomb-making case

James Neiss/staff photographerIn this file photo, investigators go over the scene following an explosion in a garage in the 6700 block of Walmore Road on July 21, 2015.

BUFFALO — The lawyer for an accused Wheatfield bomb-maker is asking a U.S. District Court judge to reject the recommendations of a federal magistrate judge denying a motion to suppress statements the man made to investigators and evidence seized from a Walmore Road garage that he used to manufacture improvised explosive devices.

The report and recommendation from Magistrate Judge Hugh Scott to District Court Judge Elizabeth Wolford concludes that efforts by Michael O’Neill to have most of the evidence against him thrown out should be denied.

But in a filing made directly to Wolford, O'Neill's defense attorney, Joseph LaTona, calls Scott's rulings "clearly erroneous and contrary to law."

O’Neill, 45, has been charged in U.S. District Court in Buffalo with unlawfully making a destructive device and unlawfully possessing a destructive device. He has pleaded not guilty to the charges.

Investigators say O’Neill set up a bomb-making operation in the garage of his parent’s Walmore Road home. The bomb factory was discovered in the early morning hours of July 21, 2015, when O’Neill suffered what was described as a “catastrophic foot injury” when he “stomped” on burning gun powder while using a heat gun to manufacture what federal law enforcement agents called an “improvised explosive device (IED).”

A search of the garage, after the explosion, led to the discovery of what agents said were six explosive devices, constructed of hard cardboard tubing with sealed ends and fuses. Another device, labeled “Powder w/Nails,” constructed using a flashlight with sealed ends and hole with a wick coming from its center was also recovered.

An X-ray of the flashlight device by members of the Erie County Sheriff’s Department Bomb Squad showed multiple nails and BBs inside it.

Investigators said they found two pill bottles labeled flash powder, a bag of potassium perchlorate, 36 shotgun shells with reloaded fragments inside and a plastic bottle of triple seven powder. All of those items are frequently used in the construction of homemade bombs.

In addition, investigators seized what they characterized as “inflammatory materials” including writings and posters linked to white supremacist and Neo-Nazi groups during their search of the garage. One of the posters proclaimed, “The KKK Wants You!”

O’Neill asked Scott to throw out the evidence taken from the garage, calling the search “warrantless” and “illegal.”But the magistrate found that, first, O’Neill had no legal standing to challenge the first entrance into the garage by investigators. 

He also found that the circumstances of the incident, a reported explosion and smoke inside the garage, made it necessary for investigators to enter it to determine if there was any danger of more damage or injury.

“The need to prevent further explosions and the presence of explosive materials in plain view, justified the deputies’ warrantless search of the garage and subsequent seizure,” Scott wrote.

In his filing with Wolford, LaTona argues that Scott ignored evidence that O'Neill told investigators to stay away from his "stuff" when they entered the garage and that they prevented O'Neil's mother from closing the garage door. 

LaTona argues O'Neill's statement and his mother's actions should have barred investigators from the garage.

O’Neill's lawyer had also argued to Scott that federal prosecutors should be barred from using statements he made, first to a Niagara County Sheriff’s Office investigator and an agent from the U.S. Bureau of Alcohol, Tobacco, Firearms & Explosives, and then later to FBI agents, because he was in a heavily medicated state at the time he was questioned and because he believed his answers would never “be used against me in any criminal case.”

Scott had previously denied a request by LaTona asking to suppress statements his client made during interviews with local investigators and federal agents while he was recovering from the injuries to his leg at the Erie County Medical Center.

In an interview with federal agents after the explosion, O’Neill said that he was “working on something” at the time of the blast. While his defense attorney, Joseph LaTona, has said O’Neill planned to use the explosives to remove tree stumps on his parent’s property.

In an affidavit, O’Neill noted that he was “heavily medicated” when he spoke to the federal agents and that his left leg had been amputated below the knee. O’Neill also claimed that investigators told him the interview would be “non-adversarial.”

“It was my understanding, based on that statement, that nothing I would say would ever be used against me in any criminal case,” O’Neill said in the affidavit. “Consequently, due to my physical condition, medication and the assurance that my words would not be used against me in a criminal prosecution, I responded to the questions put to me.”

In his recommendation, Scott determined that O’Neill was not in custody during his interviews, that as a former employee of the Niagara County Sheriff’s Office he had an understanding of his Miranda rights and, yet, he never properly invoked them. Given those circumstances, Scott said the statements O’Neill made should be admissible at trial.

In his new appeal to Wolford, LaTona again asks to have the statements thrown out. He argues that court precedent requires the that statements be suppressed if federal "agents affirmatively misled him as to the true nature of the investigation."

Wolford is considering whether to schedule a hearing on LaTona's appeal.

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