United States v. Ashburn
United States v. Yassa ASHBURN, Jamal Laurent, and Trevelle Merritt
Attorneys
Berit Winge Berger, M. Kristin Mace, Margaret Elizabeth Lee, Seth David Duc-harme, Zainab Ahmad, United States Attorneys Office, Brooklyn, NY, Gina Marie Parlovecchio, U.S. Attorney Office, New York, NY, for United States of America., Donna R. Newman, Law Office of Donna R. Newman, PA., Jeremy F. Orden, Jeremy F. Orden, Esq., New York, NY, Howard Greenberg, Howard Greenberg, Esq., Brooklyn, NY, for Defendants.
Full Opinion (html_with_citations)
MEMORANDUM & ORDER
I. INTRODUCTION
This Memorandum and Order addresses Defendant Jamal Laurentâs Omnibus PreTrial Motion. (Not. of Mot. (Dkt. 171).) Laurent, along with Defendants Yassa Ashburn and Trevelle Merritt, are charged by a fourteen count indictment with numerous racketeering crimes committed in connection with their membership in the Six Tre Outlaw Gangsta Disciples Folk Nation (âSix Tre Folk Nationâ or âSix Treâ), which was allegedly responsible for numerous acts of gang-related violence, including homicides, non-fatal shootings, and
The Indictment, filed on December 4, 2014, charges each defendant with racketeering (Count One) and racketeering conspiracy (Count Two), on the basis of twelve predicate Racketeering Acts (âRAsâ),
In advance of the upcoming trial pursuant to this Indictment, Laurent has moved the court for an order: (1) suppressing historical cell-site- information and text messages obtained from two cellular telephones; (2) excluding testimonial statements made by Defendant Merritt, or in the alternative, severing his and Merrittâs trials; (3) suppressing statements made by Laurent during questioning by law enforcement while incarcerated at Rikers Island; (4) suppressing Laurentâs statements and conduct in response to attempts by law enforcement to execute DNA sample search and seizure warrants; (5) excluding mention of Laurentâs alias from the Governmentâs ease-in-chief and the Third Superseding Indictment; and (6) compelling the Government to provide discovery under Federal Rule of Criminal Procedure 16 and Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). (See Not. of Mot. at 1; Mem. of Law in Support of DĂ©f. Laurentâs Omnibus Pre-Trial Mots. (âOmnibus Mot.â) (Dkt. 172).) Merritt joins Laurentâs motion to
II. MOTION TO SUPPRESS HISTORICAL CELL-SITE DATA
Laurent first moves to suppress certain historical mobile phone location (âcell-siteâ) data the Government has requested and received from cellular service providers. He argues that each request for information amounted to a search within the meaning of the Fourth Amendment, and as a result, the Government was required to first obtain a warrant supported by a showing of probable cause. (Omnibus Mot. at 6-7.) Because it did not, Laurent maintains, the cell-site data should be suppressed. (Id. at 7.) As the Government points out, however, the historical cell-site data was obtained pursuant to court orders authorized under both state and federal law. (Govât Mem. in Oppân at 10.) Thus,even if each request constituted a Fourth Amendment search requiring a warrant, which the Government disputes, the exclusionary rule does not apply because law enforcement relied in good faith on both the constitutionality of the relevant statutes as well as the authorization provided by judicial officers. (Id. at 12-13.) Since the court agrees that the good faith exception to the exclusionary rule applies, regardless of whether the requests for historical cell-site data constituted Fourth Amendment searches, Laurentâs motion to suppress is DENIED-.
A. Background
Laurentâs motion concerns historical cell-site data pertaining to two cell phone numbers. First, an officer of the West Hartford Police Department (âWHPDâ) âą sought and obtained this data with respect to (917) 214^1017 (the â4017 phoneâ) in August 2010, in connection with an investigation into a June 2010 robbery at Lux Bond & Green, a jewelry store in West Hartford, Connecticut. Second, in April 2011, federal prosecutors in the Eastern District of New York sought and obtained cell-site data regarding (347) 455-6638 (the â6638 phoneâ) during the course of their investigation into the murder of Dasta James in Brooklyn, New York in 'January 2011. The following circumstances were involved in each request for cell-site data, respectively.
1. The Ă017 Application and Order
According to the WHPD application for cell-site data, WHPD officers initially responded to a robbery at Lux Bond & Green on June 25, 2010. (Govât Mem. in Oppân, Ex. A, Application and Ex Parte Order to Disclose Telephone or Internet Records (â4017 Application and Orderâ) (Dkt. 180-1) at l.)
Officer Puglielli subsequently learned that the NYPD and the Federal Bureau of Investigation (âFBIâ) had been investigating a group of males in Brooklyn who were thought to be responsible for a series of jewelry store robberies similar to the one that took place at Lux Bond & Green on June 25, 2010. (Id.) These other robberies had taken place between May 2009 and August 2010 at jewelry stores that were located in New York, New Jersey, and Connecticut, and that sold high priced watches, including those manufactured by Patek Philippe. (Id.) One such theft took place on August 18, 2010, when three individuals robbed a jewelry store in Manhattan. (Id.) The suspects drove to the store in a stolen Nissan Maxima, used a sledgehammer to smash a glass window of the store, and stole an âundetermined amount of antique watches.â (Id.) One of the three suspects was apprehended and arrested by the NYPD later that day. (Id.) After receiving Miranda warnings, the suspect waived his rights and agreed to speak with law enforcement officers without the presence of counsel. (Id. at 5.) The suspect told officers, among other things, that the group had been responsible for these robberies and that they typically used another car to âtake possession of the stolen jewelry and run interference if the police became involved.â (Id.) The suspect also explained that he had been recruited by another individual, whose nickname and telephone numbers the suspect provided. (Id.)
Based on this information, along with other details, Officer Puglielli filed an application for an ex parte court order pursuant to section 54-47aa of the General Statutes of Connecticut, seeking subscriber information, call logs, and cell-site data from the 4017 phone for the period from June 1, 2010 to August 18, 2010. âą (Id. at 6.) On the application, Officer Puglielli indicated that he believed the foregoing constituted evidence that âa particular person participated or may have been knowing in the commission of the offense[s]â of first degree robbery and larceny. (Id.) On August 30, 2010, Connecticut Superior Court Judge Miaño granted the application, thereby finding that, â[t]he foregoing reasonable and articulable suspicion or exigent circumstances having been presented to and considered by the undersigned ... the undersigned (a) is satisfied therefrom that grounds exist for said application and (b) finds that said affidavit established grounds for the undersigned to issue [the ex parte] order.â (Id. at 1, 2.) Pursuant to the order, Judge Miaño required T-Mobile to provide âbasic subscriber informationâ and âcall-identifying information,â which included âdialing or signaling information that identifies the origin, direction, destination or termination of each communication generated or received by a subscriber or customerâ for the 4017 phone as well as for two phone numbers provided by the suspect on August 18, 2010. (Id. at 1.) According to the Government, T-Mobile
2. The 6638 Application and Order
Whereas T-Mobile provided the 4017 phone records to the WHPD in response to a Connecticut state court order under section 54-47aa, the 6638 phone records were obtained by the federal government pursuant to section 2703 of the Stored Communications Act (âSCAâ), 18 U.S.C. § 2703, in connection with an investigation conducted by the United States Attorneyâs Office for the Eastern District of New York in April 2011. At that time, the FBI was investigating a murder that took place on January 28, 2011, at 47 McKeever Place, in Brooklyn, New York. The victim, who was later determined to be Dasta James, had been shot twice, once in the back of his head and once in his shoulder. (Govât Mem. in Oppân at 7; id., Ex. B (â6638 Application and Orderâ) (Dkt. 180-2) at 3.) At the time of his death, James was found to be in possession of marijuana and approximately $1,960 in cash. (6638 Application and Order at 3.) Just over two months later, law enforcement officers interviewed a suspect â who was later identified as Defendant Trevelle Merritt â regarding his involvement in the James murder.
In the application for cell-site data, Assistant United States Attorney (âAUSAâ) Zainab Ahmad explained that Laurent used the 6638 phone in furtherance of the murder of Dasta James on January 28, 2011. (Id. at 2.) According to AUSA Ahmadâs application, Merritt gave Jamesâs phone number to Laurent, who called James in Merrittâs presence. (Id. at 4.) Merritt also stated that Laurent was using the 6638 phone at the time. (Id.) The application further indicated that toll records from the 6638 phone showed that Laurent called Merritt several times on January 28, 2011.
On this basis, the Government filed an application pursuant to the SCA, 18 U.S.C. § 2703(c) and (d), seeking historical cell-site information regarding the 6638 phone for the period from January 28, 2011, to 11 a.m. on the date the application was made, April 19, 2011. (Id. at 1, 6.) In support of the application, AUSA Ahmad submitted that the Government had offered âspecific and articulable facts showing that there [were] reasonable grounds to believe the information sought [was] relevant and material to an ongoing criminal investigation.â (Id. at 3.) Magistrate Judge Viktor V. Po-horelsky granted the Governmentâs application that same day, finding that the Government had in fact âoffered specific and articulable facts showing that there [were] reasonable grounds to believe that the historical cell-site information [was] relevant and material to an ongoing criminal investigation into possible violations of federal criminal laws, including racketeering, murder, robbery and conspiracy offenses in violation of 18 U.S.C. §§ 924(j), 1951(a), 1959, 1962(c) and 1962(d).â (Id. at 8.) According to the Government, while Magistrate Judge Pohorelsky ordered the cellular service provider â Metro PCS (id. at 7) â to produce historical cell-site data for the entire period requested, Metro PCS only provided this data for January 28, 2011. (Govât Mem. in Oppân at 9.) Nevertheless, the Government eventually charged all three defendants with racketeering conspiracy in Count Two of the Indictment, which requires the Government to prove that each defendant, including Laurent, agreed that he or a co-eon-spirator would commit at least two acts of racketeering in the conduct of the affairs of the enterprise. (See Indictment ¶ 34.) Especially since the Government has indicated that it will introduce the cell-site evidence at trial (see, e.g., Govât Mem. in Oppân at 24), one such act could be the attempted robbery and murder of Dasta James. (Id. at 21.)
B. Legal Standard
Laurent contends that the Government obtained this historical cell-site data in violation of the Fourth Amendment. (Omnibus Mot. at 2.) The Fourth Amendment guarantees that â[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.â U.S. Const. amend. IV. âA search conducted without a warrant is âper se unreasonable under the Fourth Amendment â subject only to a few specifically established and well-delineated exceptions.ââ United States v. Maynard, 615 F.3d 544, 566 (D.C.Cir.2010) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)), aff'd in part sub nom. United States v. Jones, â U.S. â, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). Thus, if obtaining the records sought by the Government here constitutes a search as defined by the Fourth Amendment, it is presumed that the Government must, at a minimum, obtain a warrant supported by a showing of probable cause. In re Application of United States for an Order Authorizing the Release of Historical Cell-Site Info. (âHistoric Cell-Site Info â), 809 F.Supp.2d 113, 116 (E.D.N.Y.2011).
In this context, the SCA provides a federal statutory framework for obtaining
As Laurent points out, this court has previously found that a request for prolonged historical cell-site records pursuant to § 2703 constitutes a search for the purpose of the Fourth Amendment, thus requiring the issuance of a warrant upon a showing of probable cause. See Historical Cell-Site Info, 809 F.Supp.2d at 116. In Historical Cell-Site Info, the court explained that in determining whether governmental action constituted a Fourth Amendment search, two factors control: whether â(1) the individual has âmanifested a subjective expectation of privacyâ in the thing searched; and (2) âsociety is willing to recognize that expectation as. reasonable.ââ Id. (quoting Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001)). Recounting the Supreme Courtâs decisions in United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), and United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), this court explained that the two cases together stood for the proposition that âthe Governmentâs obtaining of some electronically collected location information constitutes a search under the Fourth Amendment depending on the location (Karo) and, potentially, quantity (Knotts) of that information.â Historical Cell-Site Info, 809 F.Supp.2d at 117.
This court then looked to the reasoning in Maynard, 615 F.3d at 555. There, the Court of Appeals for the District of Columbia Circuit held that prolonged electronic surveillance of an individualâs location â via the attachment of a GPS tracking device to a vehicle â constituted a Fourth Amendment search. Id. In Maynard, however, the Governmentâs warrantless surveillance had continued for four weeks. Id. By contrast, in Historical Cell-Site Info, the Government had obtained at least 113 days of cumulative cell-site location records. 809 F.Supp.2d at 118. Based on âMaynardâs persuasive reasoning,â the- court found that the cell-site location records sought captured âenough of the userâs location information for a long enough time period ... to depict a sufficiently detailed and intimate picture of his movements to trigger the same constitutional concerns as the GPS data in Maynard.â Id. at 119. On this basis, the court concluded that âcell-phone users maintain a reasonable expectation of privacy in long-term cell-site location records,â and therefore, that the Governmentâs obtaining 113 days of cumulative cell-site location records from the targetâs cell phone â though obtained pursuant to a court order under § 2703â
C. Discussion
Laurent argues that here, as in Maynard and Historical Cell-Site Info, the Governmentâs collection of cell-site location data from both the 4017 and 6638 phones for an extended period of time constituted a warrantless search in violation of the Fourth Amendment, and that as a result, this evidence should be suppressed at trial. (Omnibus Mot. at 7.)
1. Standing
As the proponent of a motion to suppress, a defendant bears the burden of establishing that he has âstandingâ to challenge the search or seizure. Rakas v. Illinois, 439 U.S. 128, 130 n. 1, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).
As Laurent himself points out, T-Mobile has advised that Peter Laurent, Defendantâs father, is the customer associated with the 4017 phone (Omnibus Mot. at 3), and Metro PCS has disclosed that Peter Laurent was the subscriber for the 6638 phone as well (id. at 4). Moreover, Jamal Laurent told Connecticut law enforcement officers in December 2010 that âhis own cell phone number was (646) 400-7110,â an account for which phone records have not been subpoenaed or produced. (Id. at 3 n. 4.) Nevertheless, he points out that according to the Governmentâs application with respect to the 6638 phone, Peter Laurent stated in an interview that âalthough the phone was registered to him, he typically provided his son ... with cell phones.â (Id. at 4 n. 6.) Consequently, Jamal Laurent asserts that âthere is no question that [he] has standing to move to suppress the recordsâ for both the 4017 and 6638 phones. (Id.) In further support of his
Nevertheless, this court has previously noted that case law in the Second Circuit is âsparseâ on the question of whether a defendant who used a cell phone subscribed to another person has standing to move to suppress information gathered from that phone. See Herron, 2 F.Supp.3d at 400. In Herron, the court noted that this situation may be analogized to cases involving storage lockers, hotel rooms, and mail packages. Id. Such cases establish that â[o]ne need not be the owner of the property for his privacy interest to be one that the Fourth Amendment protects, so long as he has the right to exclude others from dealing with the property.â United States v. Perea, 986 F.2d 633, 639-40 (2d Cir.1993) (citing Rakas, 439 U.S. at 144 n. 12, 99 S.Ct. 421).
For example, one who, with permission of the owner, is in possession of and control over a residence that is not his own home, and who can exclude others from it, can have a legally sufficient privacy interest to establish Fourth Amendment standing to challenge a search of such premises. Id. Similarly, a person who possesses personal property belonging to another and who has the right to exclude third persons from possession of that property has an interest that is similarly protected. United States v. Ochs, 595 F.2d 1247, 1253 (2d Cir.1979) (defendant had Fourth Amendment standing to object to search of car where car owner allowed defendant to use it whenever he wished and defendant could exclude others from it); see also United States v. Finley, 477 F.3d 250, 259 (5th Cir.2007) (defendant had standing to challenge retrieval of call records and text messages from cell phone issued by his employer â his uncleâs business; although defendant could have expected employer to read his messages, employer permitted personal use and thus defendant reasonably expected to be free from intrusion by the government and the general public). This court need not decide, however, whether Laurent in fact had a sufficient privacy interest in his fatherâs cell phones to have standing to object to the introduction of historical cell-site data, for the reasons that follow.
2. Fourth Amendment Search
Even if Laurent has a legally sufficient privacy interest in his fatherâs cell phones, the next issue is whether the Governmentâs actions constituted a Fourth Amendment search subject to the warrant and probable cause requirement.
On this basis, Laurent concludes that this courtâs decision in Historical Cell-Site Info is firmly supported by a majority of the Supreme Court, and that as a result, the court should conclude here that the Government violated Laurentâs reasonable expectation of privacy by obtaining his cell-site data pursuant to § 2703. (Def. Reply Mem. at 7-8.) In response, the Government cautions the court against deciding this motion based on the anticipated evolution of Supreme Court decisions. (Govât Mem. in Oppân at 19 (citing Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (holding that where more recent Supreme Court cases appear to overrule earlier precedent by implication, district courts should not act accordingly âunless and until this Court reinterpreted the binding precedentâ)).) Nevertheless, the Government suggests that Jones requires this court to reconsider its prior decision in Historical Cell-Site Info. (Id. at 17-19 (âAlthough the majority decided the case on the ground that the governmentâs conduct involved a physical trespass to property, the two concurring opinions suggest that at least five Justices may be inclined to view reliance on the SCA as constitutional.â).)
In Maynard, which the Supreme Court affirmed on different grounds, the D.C. Circuit held that constant GPS surveillance of a suspect for four weeks constituted a Fourth Amendment search. Maynard, 615 F.3d at 555. Although it drew heavily from Maynard in finding that the collection of 113 days of location records violated individualsâ reasonable expectations of privacy, in Historical Cell-Site Info this court did not establish a lower threshold for when government tracking becomes âcumulativeâ and therefore a search under the Fourth Amendment. See Historical Cell-Site Info, 809 F.Supp.2d at 127. Nor is it necessary to do so here. See infra Part II.C.3. Because the admissibility of historical cell-site records in this case can be decided based on the basis of the good faith exception, the court declines the invitation to either reconsider' or distinguish its prior decision.
3. Good Faith Exception
As the Supreme Court has explained, â[t]he fact that a Fourth Amendment violation occurred ... does not necessarily mean that the exclusionary rule applies.â Herring v. United States, 555 U.S. 135, 140, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). In fact, evidence is only suppressed âif it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.â United States v. Leon, 468 U.S. 897, 919, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (quoting United States v. Peltier, 422 U.S. 531, 542, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975)) (internal quotation marks omitted). First, under this so-called good faith exception, evidence seized pursuant to a warrant for which actual probable cause does not exist, or which is technically deficient, is nevertheless admissible if the executing officers relied on the warrant in âobjective good faith.â Id. at 923, 104 S.Ct. 3405. Second, even in the absence of a judicially obtained warrant, the good faith exception applies to evidence obtained by police acting in objectively reasonable reliance upon a statute that is subsequently found to violate the Fourth Amendment. See Illinois v. Krull, 480 U.S. 340, 350, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987) (âUnless a statute is clearly unconstitutional, an officer cannot be expected to question the judgment of the legislature that passed the law.â); see also Davis v. United States, â U.S. -, 131 S.Ct. 2419, 2429, 180 L.Ed.2d 285 (2011) (â[Penalizing the officer for the legislatureâs error ... cannot logically contribute to the deterrence of Fourth Amendment violations.â (quoting Krull, 480 U.S. at 350, 107 S.Ct. 1160) (internal quotation marks omitted)). And most recently, in Davis, the Supreme Court extended the holding in Krull to an officerâs objectively reasonable reliance on binding appellate precedent. Davis, 131 S.Ct. at 2429.
Laurent argues that the good faith exception should not apply to the Governmentâs conduct in this case. (Omnibus Mot. at 20.) In support, Laurent points out that before the Government applied for historical cell-site data with respect to the 6638 phone, Eastern District of New York Magistrate Judge James Orenstein had issued two decisions rejecting similar applications under § 2703(d) on the basis of the targetsâ Fourth Amendment right to privacy. See In re Application of United States
This is not enough to render the Governmentâs reliance on court orders issued under the SCA and section 54-47aa objectively unreasonable. Laurent does not argue that either statute was âclearly unconstitutional,â or that Congress or the Connecticut legislature âwholly abandoned [their] responsibility to enact constitutional laws.â Krull, 480 U.S. at 355, 107 S.Ct. 1160.
a. The SCA and the 6638 Phone Records
With respect to the 6638 records, at the time of the authorization order, the only court of appeals to address the constitutionality of the SCA had concluded that it complied with Fourth Amendment. See
Moreover, as the Government points out, Magistrate Judge Orensteinâs August 2010 order was actually reversed by District Judge Roslynn R. Mauskopf in November 2010 â before the Governmentâs application was made in this case. See Order, In re Application of United States, No. 10-MC-550 (E.D.N.Y. Nov. 29, 2010), ECF No. 11. Thus, at the time Magistrate Judge Pohorelsky issued his order, it was objectively reasonable for prosecutors to have relied upon § 2703 to obtain historical cell-site data based on an application alleging only âspecific and articulable facts.â 18 U.S.C. § 2703(d). While a few district courts may have just begun to challenge the constitutionality of the SCA in this context, it cannot be said that the Government had knowledge that this search was unconstitutional when it was approved by Magistrate Judge Pohorelsky in April 2011, and where similar requests had been routinely granted by judges in this district and elsewhere. Therefore, because the Government is entitled to the good faith exception, the court will not apply the exclusionary rule to the 6638 phone records obtained pursuant to the § 2703 order. See Davis, 131 S.Ct. at 2429 (â[T]he harsh sanction of exclusion âshould not be applied to deter objectively reasonable law enforcement activity.ââ (quoting Leon, 468 U.S. at 919, 104 S.Ct. 3405)).
b. Section 5k~U7aa and the 1017 Phone Records
Significantly, Laurent has not set forth any argument with respect to the constitutionality of the order authorizing the WHPD to obtain cell-site records for the 4017 phone. Nor has- the court been able to identify any Connecticut or federal court decision holding that section 54-47aa violates the Fourth Amendment in the context of a request for historical cell-site data. Cf. OâMeara v. Terra, No. 10-CV-1424 (MRK), 2012 WL 1575435, at *3-4 (D.Conn. May 3, 2012) (finding, in § 1983 action, that officerâs acquisition of internet subscription information pursuant to a section 54-47aa court order was âneither unlawful nor unreasonableâ under the Fourth Amendment).. In addition, the Government argues that Officer Puglielliâs reliance on section 54-47aa was objectively reasonable because the statute requires law enforcement officials to meet a more stringent standard than the SCA requires. (Govât Mem. in Oppân at 12.) The SCA requires âspecific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.â 18 U.S.C. § 2703(d). By contrast, under section 54-47aa, an officer must provide âa reasonable and articulable suspicion that a crime has been or is being committed or that exigent circumstances exist and such call-identifying or basic subscriber information is relevant and material to an ongoing criminal investigation.â Conn. Gen.Stat. Ann. § 54-47aa(b) (amended 2011). Regardless of whether the Governmentâs assessment of the two standards is correct, however, at the time Judge Miaño issued the order in August 2010, section 54-47aa was neither âclearly
Thus, both Connecticut and federal law enforcement officials, viewed objectively, acted reasonably in relying on judicially authorized search orders pursuant to the SCA and section 54-47aa. As a result, the applications for and collection of historical cell-site records with respect to both 6638 and 4017 phones were completed in good faith. Accordingly, Laurentâs Motion to Suppress is DENIED.
III. MOTION TO EXCLUDE MERRITTâS STATEMENTS
Laurent has also moved to exclude statements made by Defendant Trevelle Merritt to law enforcement officials regarding the murder of Dasta James. (Omnibus Mot. at 25.) Laurent argues that unless Merritt testifies at trial, these statements must be excluded pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), because they implicate Laurent in Jamesâs murder and .their introduction would therefore violate his right under the Confrontation Clause of the Sixth Amendment. (Omnibus Mot. at 25.) In response, the Government submits that exclusion is not warranted because: (1) the Merritt statements will be introduced at trial without any specific reference to Laurent, in accordance with Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and its progeny; and (2) the Government will request that the court instruct the jury not to consider the Merritt statements as evidence against Laurent or Ashburn. (Govât Mem. in Oppân at 20.) For the reasons that follow, Laurentâs motion to exclude is DENIED.
A. Background
According to the Government, on or about January'28, 2011, Defendants Merritt and Laurent conspired to rob Dasta James, who was selling marijuana at an apartment building in Brooklyn. (Govât Mem. in Oppân at 20.) In his statements to law enforcement officers, Merritt said that he initially called James to purchase marijuana that evening. (Omnibus Mot. at 23.) Merritt said that he then met Laurent at the Ebbets Field housing projects, where he told Laurent he was planning to purchase marijuana before heading to downtown Brooklyn. (Id.) When Laurent asked Merritt who he was purchasing marijuana from, Merritt identified James, and Laurent asked Merritt for Jamesâs cell phone number. (Id.) Laurent then called James, but Merritt was unsure if Laurent and James spoke. (Id.)
Merritt claims that while he was in the stairwell he heard Laurent and James arguing, and when he returned to the hallway, Merritt saw Laurent and James wrestling and throwing punches at each other. (Id.) Merritt told law enforcement officers that during this fight, he saw Laurent pull out a silver, long-barreled handgun and shoot James once âin the torso or upper body area.â (Id.) Merritt then saw James fall to the ground, at which point Merritt ran down the stairwell to the lobby. (Id.) Merritt told law enforcement that while he was running down the stairs, he heard approximately five or six shots, and then ran through the lobby, into the garage and back to his apartment. (Id.) According to the Government, however, Merritt and Laurent fled through the building together and then split up once they were outside. (Govât Mem. in Oppân at 20-21; see also id., Ex. C, Proposed Amendments to Statements by Trevelle Merritt (âProposed Redacted Statementsâ) (Dkt. 180-3) at 2.) In support, the Government has provided defense counsel with surveillance video of the garage, âwhich shows two males leaving the apartment building just after the time of the homicide.â (Omnibus Mot. at 24.) The Government also indicates that James was shot twice, once in the left shoulder and once in the back of his head, and that James died as a result of his injuries. (Govât Mem. in Oppân at 20-21.)
On April 6, 2011, Merritt was arrested and interviewed by NYPD detectives regarding Jamesâs murder. (Id. at 21.) Over the next several days, Merritt made five separate statements to law enforcement officials: (1) an oral statement to an NYPD detective at 9:15 p.m. on April 6; (2) a handwritten statement, signed at 11:15 p.m. that same night; (3) another handwritten statement, signed at 12:45 a.m. on April 7; (4) an oral statement to a Kings County Assistant District Attorney at 1:19 PM on April 7; and (5) an oral statement to FBI agents on April 11. (Id. at 22.) Merritt was ultimately charged in connection with Jamesâs murder in Racketeering Act 12 of Counts One and Two of the Indictment, as well as in Count Eleven (Hobbs Act robbery conspiracy), Count Twelve (attempted Hobbs Act robbery), Count Thirteen (unlawful use of a firearm), and Count Fourteen (causing death through use of a firearm). (Indictment ¶¶ 28-31, 47-50.)
At trial, the Government âanticipates offering to admit some or all of Merrittâs statements,â by eliciting testimony from the interviewing detectives and agents. (Govât Mem. in Oppân at 22.) As Laurent concedes, he is not named in the charges specifically related to these crimes. (See Omnibus Mot. at 26.) Nevertheless, all three defendants are charged with racketeering conspiracy in Count Two, which will require the Government to prove that each defendant, including Laurent, agreed that he or a co-conspirator would commit at least two acts of racketeering in the conduct of the affairs of the enterprise. (See Indictment ¶ 34.) As the Government admits, one such act could be the attempted robbery and murder of Dasta James.
B. Legal Standard
âThe crux of [the Confrontation Clause] is that the government cannot introduce at trial statements containing accusations against the defendant unless the accuser takes the stand against the defendant and is available for cross examination.â United States v. Taylor, 745 F.3d 15, 28 (2d Cir.2014) (quoting United States v. Jass, 569 F.3d 47, 55 (2d Cir.2009)) (internal quotation marks omitted). As a result, â[w]hen the confession of one defendant implicates his co-defendants, Bruton demands a redaction and substitution adequate to remove the overwhelming probability that a jury will not follow a limiting instruction that precludes its consideration of a redacted confession against a defendant other than the declarant.â Id. (quoting Jass, 569 F.3d at 60) (emphasis added) âą (internal quotation marks omitted). Where âthe confession is redacted to eliminate not only the defendantâs name, but any reference to his or her existence,â however, âthe Confrontation Clause is not violated by the admission of a nontestify-ing codefendantâs confession with a proper limiting instruction.â Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). Thus, redactions or substitutions are consistent with Bruton âif the altered statement uses words âthat might actually have been said by a person admitting his own culpability in the charged conspiracy while .shielding the specific identity of his confederate.ââ Taylor, 745 F.3d at 28 (quoting Jass, 569 F.3d at 62); see also United States v. Tutino, 883 F.2d 1125, 1135 (2d Cir.1989) (upholding redacted statement where âthe jury â never knew that [the declarantâs] original statement named namesâ). For example, the Second Circuit has previously allowed proper names to be replaced , by âanother person,â Jass, 569 F.3d at 59; âmy neighbor,â United States v. Yousef, 327 F.3d 56, 149 (2d Cir.2003); âhe,â United States v. Kyles, 40 F.3d 519, 526 (2d Cir.1994); âthis guy,â âanother guy,â and âsimilar language,â United States v. Williams, 936 F.2d 698, 699, 701 (2d Cir.1991); âfriend,â United States v. Benitez, 920 F.2d 1080, 1087 (2d Cir.1990); and âothers,â âother people,â and âanother person,â Tutino, 883 F.2d at 1135.
Ultimately, as the Second Circuit explained in Tutino, and confirmed in Jass, âa Bruton challenge to a redacted confession [is] properly analyzed by reference to two questions: (1) did the redacted statement give any âindication to the jury that the original statement contained actual names,â and (2) did the âstatement standing alone ... otherwise connect co-defendants to the crimes.ââ Jass, 569 F.3d at 58 (emphasis added) (quoting Tutino, 883 F.2d at 1135). In other words:
The critical inquiry is ... not whether a jury might infer from other facts (whether evidence admitted at trial or circumstances such as the number of defendants on trial) that a declarantâs neutral allusion to a confederate might have referenced the defendant. It is whether the neutral allusion sufficiently conceals the fact of explicit identification to eliminate the overwhelming probability that a jury hearing the confession at a joint trial will not be able to follow an appropriate limiting instruction.
Id. at 61. Accordingly, these cases âdo not construe the Confrontation Clause to demand further that a confession be redacted so as to permit no incriminating inference against the non-declarant defendant. To the contrary, the law assumes that even a redacted statement will prejudice a defendant if it is considered against him.â Id. at 60-61 (emphasis in original). While âthe line between testimony that falls within Brutonâs scope and that which does not is often difficult to discern,â United States v. Lung Fong Chen, 393 F.3d 139, 149 (2d Cir.2004), the court is persuaded that with two slight modifications, the Governmentâs proposed substitutions in this case are sufficient to overcome Laurentâs Sixth Amendment challenge.
C. Discussion
The Government maintains that Laurentâs Sixth Amendment rights will be protected by the following measures. First, the Government has proposed making a set of substitutions for all references to Laurent in Merrittâs statements. (See Proposed Redacted Statements.) The vast majority of these substitutions consist of
In response, Laurent maintains that the Governmentâs proposed redactions will not cure the prejudicial effect of Merrittâs statements, and that a limiting instruction would not sufficiently protect his Sixth Amendment rights. (Def. Reply Mem. at 8.) First, Laurent argues that the proposed redactions are insufficient to comply with requirement that the statements be redacted to âeliminate not only the defendantâs name, but any reference to his or her existence.â (Id. at 9 (emphasis in original) (quoting Richardson, 481 U.S. at 211, 107 S.Ct. 1702); see also Omnibus Mot. at 30 (âThe frequent mention of Mr. Laurentâs name renders redaction impracticable, awkward, and ultimately prejudicial ... because of the obviousness of the re-dactions.â).) Second, he contends that no matter how the statements are redacted, âunless they are so redacted that they do not mention or allow for the inference of another individualâs presenceâ at Jamesâs robbery and murder, the risk that the statements will implicate Laurent is so significant that violation of his Sixth Amendment rights is inevitable. (Omnibus Mot. at 30; see also Def. Reply Mem. at 10 (arguing that instructing the jury that it should consider the statements âonly against the self-confessed bystander/witness and not against the alleged shooter is absurdâ).) In particular, he argues that given the limited number of additional co-defendants at trial, any redaction or substitution of his name âwould not avoid prejudiceâ to Laurent because Merrittâs statement âdenies all responsibilityâ for Jamesâs death and âplaces full culpabilityâ on Laurent. (Omnibus Mot. at 29, 30 (â[Cjonsidering the totality here of the statement and the context of the trial, any redaction would nonetheless, lead to the inference that Mr. Merritt was accusing Mr. Laurent in the murder of Dasta James.â).) Ultimately, Laurent maintains that in light of the other evidence that will be introduced, âthe Governmentâs argument that Mr. Merrittâs statement will not be âadmitted againstâ Mr. Laurent because redactions will omit mention of his name attributes superhuman powers of compartmentalization and differentiation to the prospective jurors and is not supported by common sense.â (Def. Reply Mem. at 9.) Nevertheless, the court finds Laurentâs arguments to be unavailing.
1. Adequacy of Proposed Redactions
In support of his first argument, Laurent points to the Second Circuitâs instruction in Jass, âurg[ingj district courts, wherever possible, to eliminate completely ... any mention of a non-declarant defendantâs existence.â (Def. Reply Mem. at 10 (quoting United States v. Defreitas, 701 F.Supp.2d 309, 313 (E.D.N.Y.2010) (quoting Jass, 569 F.3d at 56 n. 5)).) As Laurent further notes, the court went on to advise district judges that â[njeutral pro
For example, in Jass itself, the court permitted substitution of âanother personâ where âcomplete redaction would have changed the substanceâ of the confession âbecause acknowledgement of a confederate was critical to proving that [the declar-antâs admission was to conspiratorial, as well as substantiveâ crimes, both of which had been charged in the indictment. Jass, 569 F.3d at 56 n. 5; see also Defreitas, 701 F.Supp.2d at 315 (â[T]he contention that a Bruton analysis is different when applied to a conspiracy charged against all defendants is baseless in light of [Second Circuit precedent].â). Similarly, with respect to the James murder, Merritt is charged with Hobbs Act robbery conspiracy (Count Eleven) in addition to attempted Hobbs Act robbery (Count Twelve), among other crimes. (Indictment ¶¶ 28-31, 47-50.) Thus, complete redaction is also impossible here, where Merrittâs claims regarding a confederateâs involvement in the James robbery and murder are critical to proving that Merritt is guilty of not just substantive but also conspiracy charges. See Jass, 569 F.3d at 56 n. 5.
As a result, neutral pronoun substitution is appropriate, so long as the substituted language does not otherwise violate Laurentâs Sixth Amendment right to confrontation. The question then becomes whether the redacted statements manifest â âobvious indications of alteration,â or' otherwise signal to the jury that the statements had originally âcontained actual names.ââ Jass, 569 F.3d at 62 (quoting Gray, 523 U.S. at 192, 118 S.Ct. 1151; Tutino, 883 F.2d at 1135). These standards reflect that the purpose of the substitutions is not to eliminate references to the fact of a confederate, but rather, to use words âthat might actually have been said by a person admitting his own culpability in the charged conspiracy while shielding the specific identity of his confederate.â Taylor, 745 F.3d at 28 (emphasis added) (quoting Jass, 569 F.3d at 62) (internal quotation marks omitted).
Here, the Governmentâs proposed redacted statements do not manifest obvious signs of alteration, or otherwise signal to the jury that they originally contained actual names. See Jass, 569 F.3d at 62. The neutral pronoun substitutions that the Government has proposed for replacing all references to Laurentâs name, âthe guy,â âthe other guy,â or âa guy he knows,â are not analogous to obvious alterations such as a blank space, âdeleted,â or âredacted,â which the Supreme Court has .previous rejected. See Gray, 523 U.S. at 192, 118 S.Ct. 1151. Moreover, the Second Circuit has specifically sanctioned the use of the neutral pronoun substitutions proposed in this case. See Williams, 936 F.2d at 699, 701. In addition, no other aspect of the Governmentâs proposed substitutions would signal to a jury that the statements originally contained names â by, for example, identifying some co-conspirators but not others, or through other âawkward circumlocution[s].â Taylor, 745 F.3d at
While this language is somewhat cumbersome, with minor changes, these substitutions do not rise to the level of recurring awkward circumlocutions that contributed to the Second Circuitâs holding in Taylor.
2. Redacted Statementsâ Connection to Laurent
The second inquiry is whether the redacted statements, âstanding alone,â otherwise connect Laurent to the crimes. See id. (quoting Tutino, 883 F.2d at 1135). Laurent argues that given the circumstances of this case and the nature of Merrittâs confession, no type of redaction or substitution would prevent the jury from inferring Laurentâs participation in the robbery and murder of Dasta James. (Ămnibus Mot. at 29 (â[T]he court may not accept a redaction without considering the reality of what is being inferred in light of, for example, the number of defendants.â); Def. Reply Mem. at 11-12 (âMr. Merrittâs statements basically convert him to an eyewitness rather than an active participant in the robbery and murder.... [N]o other evidence is required to infer that another individual â one of Mr. Merrittâs co-defendants â orchestrated the entire event. Given the Governmentâs intent to introduce Mr. Laurentâs phone records ... the proverbial finger will point directly at Mr. Laurent.â).) In so arguing, however, Laurent misconstrues the relevant legal question.
As the Government points out, the âcritical inquiry is ... not whether a jury might infer from other facts (whether evidence admitted at trial or circumstances such as the number of defendants on trial) that a declarantâs neutral allusion to a confederate might have referenced the defendant.â
Nothing in Merrittâs redacted statements, viewed in isolation, is facially incriminating to Laurent in particular. See Richardson, 481 U.S. at 208, 107 S.Ct. 1702 (observing that âin this case the confession was not incriminating on its face, and became so only when linked with evidence introduced later at trialâ). That the Government will seek to tie Laurent to the crimes through other evidence â such as cell phone records, cell-site data, and the video from the garage â is irrelevant to the Confrontation Clause analysis, because the redacted statements, standing alone, do not connect Laurent, specifically, to the crimes. See Jass, 569 F.3d at 58 (citing Tutino, 883 F.2d at 1135). This is a direct consequence of the Governmentâs use of a neutral allusion instead of Laurentâs name (or nickname, Tails). As the Second Circuit has explained:
In Gray itself, the Supreme Court suggested that the identified Confrontation Clause violation could have been avoided by substituting âa few other guys,â a phrase suggesting male confederates, for the names of the defendants. Gray v. Maryland, 523 U.S. at 196, 118 S.Ct. 1151. By contrast, Gray explained that redactions âthat use shortened first names, nicknames, [or] descriptions as unique as the âred-haired, bearded, one-eyed man-with-a-limpâ â would fall within Brutonâs protection. Id. at 195, 118 S.Ct. 1151. So too would a description of a defendant as âthis white guyâ when coupled with particulars as to âage, height, and weight.â Harrington v. California, 395 U.S. 250, 253, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); see also United States v. Hoover, 246 F.3d 1054, 1059 (7th Cir.2001) (holding that replacement of defendantsâ names with terms âincarcerated leaderâ and âunincarcerated leaderâ provided jury with âaliases based on their occupationsâ that âno more concealed their identitiesâ than would âthe substitution of âMark Twainâ for âSamuel Clemensâ â). A simple gen*426 der reference, however, lacks the specificity necessary to permit a jury to draw an immediate inference that the defendant is the person identified in the confession.
Jass, 569 F.3d at 63. Similarly, here, the use of neutral pronouns â like âthe guy,â or âthe other guyâ â to remove from Merrittâs statements all references to Laurent prevents the jury from âimmediatelyâ inferring that Merritt named Laurent as a co-conspirator, as opposed to Defendant Ash-burn or some other member of the Six Tre Folk Nation. (See Proposed Redacted Statements at 10 (indicating that âthe guy who shot [James] is a FOLK street gang memberâ).) In fact, it is only through other evidence that the Government plans to introduce that the statements become incriminating to Laurent in particular. See, e.g., Lung Fong Chen, 393 F.3d at 148 (rejecting Bruton challenge where the de-clarantâs statements implicated co-defendants âonly ... with the assistance of other testimonyâ).
Thus, for the same reason, it is also irrelevant that Laurent and Ashburn are the only other defendants on trial. In Jass, both defendants were charged with (1) conspiracy to transport minors in interstate commerce with the intent of (i) having a minor engage in illegal sexual activity and (ii) producing a visual depiction of a minor engaged in such activity; (2) actual transportation of a minor in interstate commerce with the intent to engage in criminal sexual activity; and (3) sexual exploitation of a child. 569 F.3d at 50. At trial, the district court admitted a redacted version of the male defendantâs confession that stated, for example, âhe and the other person attempted to have sexual intercourse while [Victim 2] was watching.â On appeal, the non-confessing female defendant argued that because only two adults were involved in the charged crime, only two defendants were on trial, and âthe reference to attempted sexual intercourse with âanother personâ clearly signaled to the jury that his confederate was a woman,â the jury would immediately infer that she was the other person referenced in the confession. Id. at 62.
The Second Circuit rejected this argument, concluding that the jury âwould have had to refer to other trial evidence to link [her] to the redacted statement.â Id. It reasoned:
Where a âblankâ in a redacted confession indicated that the declarant specifically identified a confederate, Gray observed that âa more sophisticated juror, wondering if the blank refers to someone [other than the defendant], might also wonder how, if it did, the prosecutor could argue the confession is reliable, for the prosecutor, after all, has been arguing that [the defendant], not someone else, helped [the declarant] commit the crime.â [523 U.S.] at 193, 118 S.Ct. 1151.
Jurors in [the instant] case, however, could not have drawn a similar inference from [the declarantes redacted confession because prosecutors employed neutral substitutions that plausibly indicated only that [the declarant] acknowledged having a confederate, but that did not suggest that he had made a specific identification. When a confession is properly redacted in this way, a prosecutor may argue that the confession is reliable without tempting a âmore sophisticated jurorâ to make a further inference as to the reliability of a specific identification made in the confession.
Id. at 63 n. 8. The court went on to note that âat most ... a juror might have inferred from [the declarantes confession that the prosecutor believed [the co-defendant] to be the âother personâ that [the
D. Consistency of Government Charging Theory
Laurent nonetheless argues that, as a practical matter, the Government should not be permitted, on the one hand, to introduce Merrittâs statements that the âother guyâ â Laurentâactually shot Das-ta James, but on the other hand, argue to the jury that Merritt is the one who committed the crimes. (Def. Reply Mem. at 12 (â[T]he Government is simultaneously crediting Mr. Merrittâs statement as to Mr. Laurentâs alleged role and not crediting the statement against Mr. Merritt himself, as evidenced by the Governmentâs charging decision.â).) Regardless of what the Governmentâs actual theory is with respect to the roles played by Merritt and Laurent in the robbery and murder of Dasta James, Laurent is incorrect that the Governmentâs charging decision is necessarily inconsistent with Merrittâs statements, taken at face value.
Merritt is charged with Hobbs Act robbery conspiracy (Count Eleven) in violation of 18 U.S.C. § 1951(a), which requires, inter alia, that the Government prove he agreed to rob Dasta James (see Indictment ¶ 47); this is consistent with Merrittâs confession that Laurent told Merritt that he âwanted to bookâ James, and that Merritt agreed âto get [his] weed and stay out of it.â (Proposed Redacted Statements at 4.) Merritt is also charged with attempted Hobbs Act robbery (Count Twelve) (see Indictment ¶ 48), which requires the Government to prove that Merritt took a âsubstantial stepâ toward his and Laurentâs illegal agreement to rob James. See United States v. Cain, 671 F.3d 271, 279 (2d Cir.2012) (citing Yousef, 327 F.3d at 134). This is consistent with Merrittâs confession that he did in fact purchase marijuana from James and walk away to urinate. (Proposed Redacted Statements at 5.) Merritt is further charged with the unlawful use of a firearm (Count Thirteen) in violation of 18 U.S.C. § 924(c). (See Indictment ¶49) Even if the Government seeks to prove that it was Laurent who actually shot James, this charge may be consistent with an aiding and abetting theory of liability, if the Government can prove Merritt had knowledge that Laurent was carrying a gun. See Rosemond v. United States, â U.S. -, 134 S.Ct. 1240, 1249, 188 L.Ed.2d 248 (2014) (âAn active participant in a drug transaction has the intent needed to aid and abet a § 924(c) violation when he knows that one of his confederates will carry a gun.â).
Finally, Merritt is charged with causing Jamesâs death through the use of a firearm (Count Fourteen) in violation of 18 U.S.C. § 924(j), which requires proof of a âmurder,â as defined by 18 U.S.C. § 1111(a). (See Indictment ¶ 50.) Under § 1111(a),
E. Conclusion
The court therefore concludes that as slightly modified by the court, the Governmentâs proposed redacted statements do not indicate to the jury that Merrittâs original statements contained actual names; nor do the statements, standing alone, otherwise connect Laurent to the crimes. See Jass, 569 F.3d at 58. Rather, the court concludes that the neutral allusions to âthe guy,â or âthe other guy,â sufficiently âconceal ] the fact of explicit identification to eliminate an overwhelming probabilityâ that the jury hearing Merrittâs confession will not be able , to follow an appropriate limiting instruction. Id. at 60 (emphasis added). Consequently, under Supreme Court and Second Circuit precedent, the introduction of the redacted statementsâ accompanied by the appropriate limiting instruction â does not violate Laurentâs Sixth Amendment right to confrontation. As a result, Laurentâs motion to exclude Merrittâs statements is DENIED. Accordingly, the court will instruct the jury that these statements may only be considered against Merritt. See also Defreitas, 701 F.Supp.2d at 315 (indicating that the court would further instruct the jury that the statements may not be considered to prove the non-declarantâs membership in any of the conspiracies or the non-declar-antâs intent to achieve any of the conspiraciesâ objectives). The court will so instruct the jury both- contemporaneously with the introduction of the statements, and again at the conclusion of trial. See id.
,IV. MOTION FOR SEVERANCE
Laurent also argues that if Merrittâs .statements are not excluded, Laurentâs and Merrittâs trials should be severed because he and Merritt are presenting antagonistic defenses. (Omnibus Mot. at 30-32.) By a letter dated October 2, 2014, Merritt also moves for a severance on similar grounds. (Dkt. 191.) The Government argues that severance is not warranted
A. Legal Standard
Federal Rule of Criminal Procedure 8 provides that an indictment âmay charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses.â Fed.R.Crim.P. 8(b) (noting further that, â[a]ll defendants need not be charged in each countâ). As the Supreme Court has observed, â[t]here is a preference in the federal system for joint trials of defendants who are indicted together.â Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (âJoint trials âplay a vital role in the criminal justice system.â They promote efficiency and âserve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.â â (quoting Richardson v. Marsh, 481 U.S. 200, 209, 210, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987))). Not only do â[cjonsiderations of efficiency and consistency militate in favor of trying jointly defendants who were indicted together,â but joint trials are also âparticularly appropriate in circumstances where the defendants are charged with participating in the same. criminal conspiracy.â United States v. James, 712 F.3d 79, 104 (2d Cir.2013) (quoting United States v. Spinelli, 352 F.3d 48, 55 (2d Cir.2003)) (internal quotation marks omitted), cert. denied, â U.S. -, 134 S.Ct. 2660, 189 L.Ed.2d 208 (2014).
Under Federal Rule of Criminal Procedure 14, however, if âa consolidation for trial appears to prejudice a defendant ... the court may order separate trials of counts, sever the defendantsâ trials, or provide any other relief that justice requires.â Fed.R.Crim.P. 14(a). . âIn order to succeed on a motion for severance, a defendant must show that the prejudice from a joint trial is âsufficiently severe to outweigh the judicial economy that would be realized by avoiding multiple lengthy trials.ââ United States v. Defreitas, 701 F.Supp.2d 309, 316 (E.D.N.Y.2010) (quoting United States v. Walker, 142 F.3d 103, 110 (2d Cir.1998)); see also United States v. Cardascia, 951 F.2d 474, 483 (2d Cir.1991) (noting that the risk of prejudice is generally outweighed by concerns about judicial economy, the risk of inconsistent verdicts, and the favorable position that later-tried defendants obtain from familiarity with prosecution strategy). Thus, defendants seeking severance must show ânot simply some prejudice, but substantial prejudice.â United States v. Sampson, 385 F.3d 183, 190 (2d Cir.2004) (emphasis in original) (quoting United States v. Werner, 620 F.2d 922, 928 (2d Cir.1980)) (internal quotation marks omitted); see also Walker, 142 F.3d at 110 (describing defendantsâ burden as âheavyâ). Moreover, even where defendants have demonstrated substantial prejudice, severance is not required under. Rule 14. Zafiro, 506 U.S. at 538-39, 113 S.Ct. 933. Instead, the decision regarding whether to sever the defendantsâ trial is a matter committed to the âsound discretionâ of the district court, and is âvirtually unreviewable.â See James, 712 F.3d at 104 (citing United States v. Diaz, 176 F.3d 52, 102 (2d Cir.1999)).
Accordingly, courts âą have held that â[w]hen defendants are properly joined under Rule 8, a severance, pursuant to [Rule] 14, should only be granted if there is a serious risk that a joint trial would either compromise a specific trial right of one of the defendants or prevent the jury from
B. Discussion
Joinder of these defendants, who are alleged to have participated in the same racketeering conspiracy, was clearly proper under Rule 8(b). See United States v. Nerlinger, 862 F.2d 967, 973 (2d Cir.1988) (âThe established rule is that a non-frivolous conspiracy charge is sufficient to support joinder of defendants under [Rule 8(b) ].â). Indeed, Defendants Laurent and Merritt do not challenge this initial determination. Instead, Laurent first appears to argue that the jury will be unable to separate the evidence admissible only with respect to Merritt â the redacted confession â from the evidence admissible against himself. (Omnibus Mot. at 30-31.) Second, both Laurent and Merritt argue that severance is warranted because their defenses are mutually antagonistic. (Id. at 31-32; Oct. 2, 2014, Ltr. at 1.) According to Laurent, âMr. Merrittâs statement so completely inculpates Mr. Laurent while attempting to absolve Mr. Merritt of any responsibility for Jamesâ death, that the jury, in order to find Mr. Merritt not guilty of the James murder would necessarily have to find Mr. Laurent guilty of [the crime].â (Id. at 31.)
With respect to Laurentâs first argument, courts have long held that âthe fact that evidence may be admissible against one defendant but not another does not necessarily require a severance.â Spinelli, 352 F.3d at 56 (quoting United States v. Carson, 702 F.2d 351, 367 (2d Cir.1983)) (internal quotation marks omitted). More importantly, however, the court will explicitly instruct the jury that it may only consider Merrittâs confession as evidence against Merritt, and not as evidence with respect to the other defendants. See supra Part III.E. As the Supreme Court has repeatedly pointed out, the risk that jurors will consider a declarantâs. confession against a non-testifying codefendant âcan be cured with proper instructions, and âjuries are presumed to follow their instruc
Laurentâs second argument, in which Merritt joins, is also unavailing. As â[m]u-tually antagonistic defenses are not prejudicial per se,â United States v. Haynes, 16 F.3d 29, 32 (2d Cir.1994) (quoting Zafiro, 506 U.S. at 538, 113 S.Ct. 933) (internal quotation marks omitted), the test is whether the conflict is âso irreconcilable that acceptance of one defendantâs defense requires that the testimony offered on behalf of a codefendant be disbelieved,â James, 712 F.3d at 105. Laurent and Merritt clearly fail to meet this standard. As the Government points out, the surveillance video from the garage strongly suggests that at least two men were involved in the robbery and murder of Dasta James. Thus, âMerritt cannot hope to exonerate himself by pointing the finger at Laurent.â (Govât Mem. in Oppân at 28.) Moreover, Merrittâs confession itself â because it implies the participation of a co-conspirator â further prevents their defenses from being mutually antagonistic. See United States v. Shareef, 190 F.3d 71, 77 (2d Cir.1999) (introduction of confession would not create irreconcilable conflict where references to co-defendant were redacted from the declarantâs statement (citing Richardson, 481 U.S. at 208-09, 107 S.Ct. 1702)). Specifically, that Merritt was just a bystander (see Oct. 2, 2014, Ltr. at 1), is not inconsistent with the theory that someone other than Laurent shot James. See, e.g., Jass, 569 F.3d at 62 (âThe âother personâ could have been anyone.â). In other words, in no way does accepting Laurentâs defense require that Merrittâs confession be disbelieved. See James, 712 F.3d at 105. Therefore, because Laurent and Merritt have failed to demonstrate that substantial prejudice will result from their joint trial, their motions to sever are DENIED.
V. MOTION TO SUPPRESS LAURENTâS STATEMENTS TO LAW ENFORCEMENT
Next, Laurent moves to suppress statements that he made to law enforcement officers regarding the robbery of the Lux Bond & Green jewelry store in West Hartford, Connecticut.
A. Background
On December 2, 2010, Laurent was interviewed by law enforcement officers at a New York State correctional facility on Rikers Island, where he was incarcerated pending resolution of state weapons possession and reckless endangerment charges. (Omnibus Mot., Ex. B, WHPD Case/Incident Report (âCase Reportâ) (Dkt. 172-2) at 2.) The interview, which began at approximately 2:46 p.m., took place in an interview room at the Rikers Island Intelligence Unit, where Laurent was questioned by FBI Special Agent Christopher Campbell, NYPD Detective William Van Pelt, WHPD Detective Mark Puglielli, and a WHPD Officer Juda. (Id.) Initially, Detective Van Pelt spoke alone with Laurent. (Id.) The Case Report, which was written and signed by Detective Puglielli, states that Detective Van Pelt placed a bottle of water in front of Laurent and explained that the interview was being conducted in connection with an investigation in West Hartford regarding the theft of watches from Lux Bond & Green on June 25, 2010.
After Van Pelt and Laurent spoke for a few minutes, Special Agent Campbell, Detective Puglielli, and Officer Juda entered the room, introduced themselves, and reiterated the purpose of their visit. (Id.) Detective Puglielli then advised Laurent of his constitutional rights, using the WHPD Miranda Rights Waiver Form (the âFormâ). (Id. at 2, 5.) According to Detective Puglielli, Laurent stated that he understood his rights and that he had been advised of these rights by law enforcement officers on a prior occasion. (Id. at 2.) The Form, which was completed at approximately 2:59 p.m., indicates that Laurent received a General Education Diploma (âGEDâ) in 2009, and that Laurent could read and write in English. (Id. at 5.) Laurent refused, however, to sign the portion of the Form indicating that he waived his Miranda rights. (Id. at 2, 5.) Nonetheless, the interview continued, as Laurent proceeded to answer questions.
Laurent âdenied any involvementâ with the Lux Bond & Green theft, and stated that he did not know anyone involved in thefts of high-priced watches in general. (Id. at 3.) He also indicated that until his arrest in July 2010, he had been working as a custodian from 6:00 a.m. to 2:00 p.m.
Laurent then told the interviewers that âhe was getting annoyed with the questions,â and asked if he could leave. (Id. at 3-4.) Detective Puglielli told Laurent that âhe could leave at any time.â (Id. at 4.) Laurent then stated that if he met with the interviewers again he would have his attorney with him. (Id.) The interview ended at approximately 3:34 p.m., roughly 48 minutes after it began. According to the Government, Laurent was not handcuffed during the interview and the interviewers were not armed. (Govât Mem. in Oppân at 29.)
B. Discussion
The Fifth Amendment provides that â[n]o person ... shall be compelled in any criminal case to be a witness against himself.â U.S. Const, amend. V. âTo give force to the Constitutionâs protection against compelled self-incrimination, the [Supreme] Court established in Miranda âcertain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation.â â Florida v. Powell, 559 U.S. 50, 59, 130 S.Ct. 1195, 175 L.Ed.2d 1009 (2010) (quoting Duckworth v. Eagan, 492 U.S. 195, 201, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989)). After Miranda, a person âquestioned by law enforcement officers after being âtaken into custody or otherwise deprived of his freedom of action in any significant wayâ must first âbe warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.ââ Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam) (quoting Miranda, 384 U.S. at 444, 86 S.Ct. 1602). As a result of Mirandaâs âprophylacticâ nature, see Dickerson v. United States, 530 U.S. 428, 437-38, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000), â[s]tatements elicited in noncompliance with this rule may not be admitted for certain purposes in a criminal trial.â Stansbury, 511 U.S. at 322, 114 S.Ct. 1526.
Laurent argues that âit is undisputedâ that he was in custody during the December 2, 2010, interview regarding the Lux Bond & Green robbery. (Omnibus Mot. at 39.) Because this interrogation was custodial, he contends, the government is required to show that he knowingly and voluntarily waived his right to remain silent, for which â he asserts â there is no evidence. (Id. at 40.) In response, the Government disputes both of Laurentâs conclusions. First, the Government argues that Laurent was not in custody for Miranda purposes. (Govât Mem. in Oppân at 32.)
1. Custody
A law enforcement officerâs obligation to administer Miranda warnings attaches âonly where there has been such a restriction on a personâs freedom as to render him âin custody.ââ Stansbury, 511 U.S. at 322, 114 S.Ct. 1526 (quoting Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per cu-riam)) (internal quotation marks omitted). Under the Supreme Courtâs Miranda doctrine, â âcustodyâ is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion.â Howes v. Fields, â U.S. -, 132 S.Ct. 1181, 1189, 182 L.Ed.2d 17 (2012); see also Dickerson, 530 U.S. at 435, 120 S.Ct. 2326 (â[T]he coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements, and thus heightens the risk that an individual will not be âaccorded his privilege under the Fifth Amendment ... not to be compelled to incriminate himself.ââ (quoting Miranda, 384 U.S. at 439, 86 S.Ct. 1602)). In determining whether a person is in custody for Fifth Amendment purposes, the initial step is to ascertain whether, âin light of the objective circumstances of the interrogation, a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.â Howes, 132 S.Ct. at 1189 (alteration in original) (citation and internal quotation marks omitted). â[I]n order to determine how a suspect would have âgauge[d]â his âfreedom of movement,â courts must examine âall of the circumstances surrounding the interrogation.ââ Id. (quoting Stansbury, 511 U.S. at 322, 325, 114 S.Ct. 1526). In Howes, the Supreme Court explained that the relevant circumstances for courts to consider include the location of questioning, its duration, statements made during the questioning, the presence or absence of physical restraints, and the release of the interviewee at the end of questioning. Id. (citations omitted).
The Court has also held, however, that â[n]ot all restraints on freedom of movement amount to custody for purposes of Miranda.â Id. at 1189, 1190 (âOur cases make clear ... that the freedom-of-movement test identifies only a necessary and not a sufficient condition for Miranda custody.â (quoting Maryland v. Shatzer, 559 U.S. 98, 112, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010)) (internal quotation marks omitted)). Instead, courts must also ask âwhether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.â Id. at 1189â 90. Significantly, âimprisonment alone is not enough to create a custodial situation within the meaning of Miranda.â Id. (rejecting the categorical rule that âa prisoner is always in custody for purposes of Miranda whenever a prisoner is isolated from the general prison population and questioned about conduct outside the prisonâ). Thus, â[w]hen a prisoner is questioned, the determination of custody should focus on all of the features of the interrogation,â including the language used in summoning the prisoner to the interview, and the manner in which the interrogation is conducted. Id. at 1192 (âFidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated.â (quoting Berkemer v. McCar
Because âimprisonment alone is not enoughâ to establish custody, the court looks to the relevant factors outlined in Howes to determine, in light of the objective circumstances of Laurentâs interview, whether a reasonable person would have felt at liberty to terminate the interrogation and leave. Howes, 132 S.Ct. at 1189, 1190. Here, the questioning took place in an interview room at the âIntelligence Unitâ of a Rikers Island correctional facility, where Laurent was already being held pending charges in a New York State criminal matter. At the start, Laurent was met by just one interviewer, Detective Van Pelt, who provided Laurent with a bottle of water and explained the purpose of the interview. After a few minutes, three more law enforcement officers entered the room, and then the interview formally began. According to the Case Report, it appears that throughout the course of the interview, Laurent was questioned variously by three interviewers: Detective Van Pelt, Special Agent Campbell, and Detective Puglielli. After approximately 48 minutes, Laurent told the interviewers that he was getting âannoyedâ with their questions, and it was at this point that he first asked if he could leave. Detective Puglielli replied that Laurent âcould leave at any time,â at which point, Laurent left the room.
Laurent correctly points out that despite the Governmentâs contention (see Govât Mem. in Oppân at 29), there is no evidence in the record â namely, the Case Reportâ regarding whether Laurent was handcuffed or the interviewers were armed. (Def. Reply Mem. at 13.) He further argues that even if those facts were proven, âcommon sense indicates that an individual with a limited prior history of police contact, who was incarcerated at the time of the interview, would not have understood his right to terminate the interview if it was not explicitly explained to him and would have felt compelled to speak with the detectives.â (Id. at 14.) Because the test is an objective one, however, the fact that Laurent had a limited history of police contact is irrelevant, at least with respect to whether he was in âcustody.â See Howes, 132 S.Ct. at 1189. Moreover, Laurentâs assertion that he did not understand his right to leave because it was not made clear to him is belied by his own conduct. In fact, as soon as Laurent became âannoyedâ by the questioning, he asked if he could leave, was told that he could, and he did. Furthermore, the fact that the questioning immediately ceased when Laurent became âannoyedâ strongly suggests that the interview was terminated long before it became coercive. Cf. id. (interrogation is custodial when there is a âserious danger of coercionâ).
Still, while the Case Report provides substantial information regarding the manner in which the interrogation was conducted, there is little evidence regarding the circumstances in which Laurent was summoned to the interview. See id. at 1192. For example, there is no evidence regarding what Laurent was told before he entered the interview room, nor is it clear whether Laurent was escorted to the Intelligence Unit or whether he had to wait for an escort when he left the interview. See id. at 1188 n. 4 (noting that it was âimpossible to tellâ whether the prisonerâs interview was âroutine or whether there were special features that may have created an especially coercive atmosphereâ). Accordingly, Laurent argues that the lack of video or other documentary evidence with respect to these- issues â among others â -requires suppression, or at least, an evidentiary hearing to determine whether
It is well established that a defendant must show that âdisputed issues of material fact exist before an evidentiary hearing is required.â See, e.g., United States v. Viscioso, 711 F.Supp. 740, 745 (S.D.N.Y.1989). Moreover, this showing âmust be made by an affidavit of someone with personal knowledge of the underlying facts.â See, e.g., United States v. Shaw, 260 F.Supp.2d 567, 570 (E.D.N.Y.2003) (citing United States v. Gillette, 383 F.2d 843, 848 (2d Cir.1967)). Thus, courts are required to grant such hearings only when the mov-antâs affidavit contains sufficient factual allegations reflecting personal knowledge, which, if proven, would warrant the relief requested. See, e.g., Viscioso, 711 F.Supp. at 745 (citing United States v. Culotta, 413 F.2d 1343, 1345 (2d Cir.1969)). âIndeed, courts in this district consistently deny hearings where defendants have failed to provide affidavits alleging facts based on personal knowledge.â United States v. Wilson, 493 F.Supp.2d 364, 380 (E.D.N.Y.2006) (citing United States v. Larranga Lopez, No. 05-CR-655 (SLT), 2006 WL 1307963, at *3 (E.D.N.Y. May 11, 2006) (citing cases)).
Here, the outcome is no different. Laurentâs affidavit contains no factual allegations that both reflect his personal knowledge and would create a disputed issue of material fact, let alone provide a basis for granting suppression. {See Laurent Aff. (Dkt. 173) at 1.) Instead, it merely states that he was interviewed by the officers on December 2, 2010, while he was âin custody at Rikers Island,â that he refused to sign the Miranda waiver, that the agents âcontinued to question [him],â and that his statements should be suppressed as a result. {Id. ¶¶ 5-7.) Therefore, the court denies the request for a hearing. See Viscioso, 711 F.Supp. at 745 (finding no' hearing was required where defendantâs allegations were âgeneral, conclusory or based on conjectureâ).
Moreover, given the Supreme Courtâs decision in Howes, evidence regarding the circumstances under which Laurent was summoned to the interview would have no effect on the courtâs determination regarding custody in this case. In Howes, the prisoner was told at the outset of the interrogation that he could leave at any time, was not physically restrained or threatened, was not uncomfortable, and was offered food and water. 132 S.Ct. at â 1193. In addition, the interview took place in a well-lit, average-sized conference room, and the door was sometimes left open. Id. On the other hand, the prisoner âdid not invite the interview or consent to it in advance,â nor was he advised âthat he was free to decline to speak with the deputies.â Id. (noting the defendant was not read Miranda rights). In addition, the interview lasted for at least five hours in the evening, âand continued well past the hour when [the prisoner] generally went to bed.â Id. Moreover, the officers who questioned the prisoner were armed, and one of them â according to the prisonerâ used âa very sharp tone,â and, on one occasion, profanity. Id. Finally, because he was incarcerated, the prisoner âwas not free to leave the conference room by himself. ... Instead, he was escorted to the conference room and, when he ultimately decided to end the interview, he had to wait about 20 minutes for a corrections officer to arrive and escort him to his
By contrast, Laurentâs interview lasted less than 50 minutes and took place during the middle of the afternoon. Cf. id. at 1186 (noting prisoner arrived at conference room between 7 p.m. and 9 p.m. and was questioned for between five and seven hours). More importantly, Laurent received Miranda warnings advising him of his right to remain silent at the beginning of the interview. Cf. id. (âAt no time was [the prisoner] given Miranda warnings or advised that he did not have to speak with the deputies.â).
2. Invocation
Yet even if the court were to conclude that Laurent were in custody for Fifth Amendment purposes, it would not necessarily follow that his statements should be suppressed. Laurent insists that as a result of his lack of advanced education and the âsignificant psychological pressureâ of the situation, his refusal to sign the Form constituted an invocation of his right to remain silent. (See Omnibus Mot. at 40.) After the Supreme Courtâs decision in Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010), âfor a defendant to invoke either the right to remain silent or the right to counsel, he must do so unambiguously.â United States v. Plugh, 648 F.3d 118, 128 (2d Cir.2011). Moreover, the Second Circuit has specifically held that âa refusal to sign a waiver of those rights, however unequivocal, is not itself necessarily sufficient to establish an unambiguous invocation thereof.â Id. Instead, invocation and waiver âare entirely distinct inquiries,â Smith v. Illinois, 469 U.S. 91, 98, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (per curiam), are governed by different standards, see, e.g., Berghuis, 560 U.S. 370, 130 S.Ct. 2250, and âcarry critically different consequences.â Plugh, 648 F.3d at 125. In this
Here, the Second Circuitâs decision in Plugh is particularly instructive. There, the suspect â who was arrested, handcuffed, and advised of his Miranda rights' â -told the agents that he understood his rights, but refused to sign a waiver-of-rights form, saying âI am not sure if I should be talking to you,â and 'âI donât know if I need a lawyer.â 648 F.3d at 120-21. The court reasoned that â[wjhile his refusal to sign the form presented to him upon arrest may have unequivocally established that he did not wish to waive his rights at that time, his concurrent statements made equally clear he was also not seeking to invoke his rights and thus cut off all further questioning at that point.â Id. at 125 (emphasis in original). It further noted the Supreme Courtâs instruction that if an accused makes no statement, âthe police are not required to end the interrogation, or ask questions to clarify whether the accused wants to invoke his or her Miranda rights.â Id. at 126 (emphasis in original) (quoting Berghuis, 560 U.S. at 381, 130 S.Ct. 2250) (internal quotation marks omitted); see also Davis v. United States, 512 U.S. 452, 461-62, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (âIf the suspectâs statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.â). Pointing out that the defendant never expressly stated that he wished to remain silent, the Second Circuit concluded that he did not unambiguously invoke his right to remain silent. Plugh, 648 F.3d at 126-27.
Similarly, although he refused to sign the Form, at no point did Laurent state that he wished to invoke his right to remain silent, nor was his course of conduct âsuch that the officers should reasonably have been put on notice that ... no further questioning could occur.â See id. at 126 (internal citations omitted). Moreover, unlike the defendant in Plugh, Laurent never made statements that created ambiguity or âbespoke indecisionâ with respect to invocation. Id. at 125-26. Finally, after Laurent asked to leave and the questioning ceased, Laurent stated that he would have his attorney with him if he ever met the interviewers again. If anything, this strongly suggested both that he understood he had a right to counsel and that he affirmatively chose not to exercise that right during the interview. Given these facts, after Berghuis and Plugh, it is clear that Laurent did not unambiguously invoke his right to remain silent, even though he refused to sign the Form. See id.
3. Waiver
Nonetheless, where an interview is custodial â even if the defendant fails to invoke his right to remain silent â any statement made âis inadmissible at trial unless the prosecution can establish that the accused in fact knowingly and voluntarily waived [Miranda ] rights when making the statement.â United States v. Taylor, 745
âWhile the government bears the burden of demonstrating a knowing and voluntary waiver, such a waiver need not be express.â Plugh, 648 F.3d at 127; see also Berghuis, 560 U.S. at 384, 130 S.Ct. 2250 (stating that âthis âheavy burdenâ is not more than the burden to establish waiver by a preponderance of the evidenceâ (citing Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986))). Rather, âwaiver can be clearly inferred from the actions and words of the person interrogated.â North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). âWhere the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accusedâs uncoerced statement establishes an implied waiver of the right to remain silent.â Plugh, 648 F.3d at 127 (quoting Berghuis, 560 U.S. at 384, 130 S.Ct. 2250) (internal quotation marks omitted). As the Supreme Court has explained, the question âis not one of form, but rather, whether the defendant in fact knowingly and voluntarily waived [his Miranda] rights.â Butler, 441 U.S. at 373, 99 S.Ct. 1755. Thus, the court presumes that an individual who, âwith a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford.â Berghuis, 560 U.S. at 385, 130 S.Ct. 2250.
Laurent contends that the Government has not offered sufficient evidence to establish that he knowingly and voluntarily waived his Miranda rights. (See Def. Reply Mem. at 14 (âIt is obvious that [his] refusal to sign the waiver was a refusal to waive his right to remain silent.â).) The Government argues, however, that by continuing to answer the interviewersâ questions after having received- and understood the Miranda warnings, Laurent implicitly waived his right to remain silent. (Govât Mem. in Oppân at 33.) Certainly, it is well established that âwaiver can be inferred from the actions and words of the person interrogated.â Plugh, 648 F.3d at 127 (quoting Butler, 441 U.S. at 373, 99 S.Ct. 1755) (internal quotation marks omitted). In particular, âa suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police.â Berghuis, 560 U.S. at 388-89, 130 S.Ct. 2250. And here, there is no dispute that Laurent was advised of his Miranda rights before the interview began. The question therefore becomes whether Laurent knowingly and voluntarily waived his right to remain silent by continuing to answer questions for the subsequent approximately 40 minutes. Under Plugh, this turns on whether Laurent was fully aware of âthe nature of the right being abandoned and the consequences of abandoning it,â and whether he was free from intimidation, coercion, or deception. See Taylor, 745 F.3d at 23.
In maintaining that his waiver was not voluntary, Laurent cites to his high school GED education to argue that he experienced âsignificant psychological pressure from the mere fact of ... custodial interrogation.â (Omnibus Mot. at 40;' see also Def. Reply Mem. at 14 (âThe coercive nature of the interrogation combined with a lack of familiarity with police procedure ... mandate suppression... \ â).) As further support, Laurent points out that the Case Report indicates the officers âconfrontedâ Laurent with certain information and âstated that he was lying.â (Def. Reply Mem. at 15.) There is no evidence, however, that the circumstances of his questioning were sufficient to overbear Laurentâs will. See Taylor, 745 F.3d at 23. In particular, Laurent does not contend that the officers threatened, intimidated, or deceived him in any way. See Plugh, 648 F.3d at 128 (affirming district courtâs finding of voluntariness where defendant âwas never threatened physically or psychologically abused in any manner, or made any type of promises such that his will was overborneâ). To the contrary, Laurent was permitted to leave as soon as he became âannoyedâ by the interviewersâ questioning. In fact, the court is struck by the absence of evidence suggesting that these circumstances gave rise to the level of coercion necessary to find that Laurentâs statements were made involuntarily. See Taylor, 745 F.3d at 25 (citing Connelly, 479 U.S. at 157, 107 S.Ct. 515 (stressing the âcrucial element of police overreachingâ in assessing voluntariness)). Thus, on this record alone, the court is satisfied that Laurent knowingly and voluntarily waived his rights âthrough a âcourse of conduct indicating waiver.ââ Plugh, 648 F.3d at 128.
Significantly, Laurent does not dispute the Case Reportâs account of the interview. Instead, he argues that his waiver was not knowing or voluntary because âthere is no indication that [he] initialed the form to signify understanding.â (Omnibus Mot. at 40.) While it is generally true that âa suspect who reads, acknowledges, - and signs an âadvice of rightsâ form before making a statement has knowingly and voluntarily waived Miranda rights,â Taylor, 745 F.3d at 23, obtaining a suspectâs signature on an advice-of-rights form is not a necessary condition for establishing a knowing and voluntary waiver. Accord Berghuis, 560 U.S. at 385-86, 130 S.Ct. 2250; United States v. Tutino, 883 F.2d 1125, 1138 (2d Cir.1989) (confession properly admitted even though defendant did not affirmatively state that he wished to confess, where âhe nodded his head and said âyesâ when asked if he understood his rightsâ); United States v. Boston, 508 F.2d 1171, 1175 (2d Cir.1974) (âa written waiver is not requiredâ). In fact, courts have specifically held that by proceeding to answer questions, a defendant can be found to have waived his Miranda rights
Here; Laurent explicitly stated he understood the warnings, admitted to having received them on a previous occasion, and â after answering the officersâ questions for nearly 50 minutes â -informed them that he was becoming âannoyedâ and would bring his attorney to any future visits. As a result, the Government has demonstrated by a preponderance of the evidence that Laurentâs waiver of Miranda rights was knowing and voluntary, despite his refusal to sign the Form. Accordingly, even if he were in âcustody,â since Laurent was provided with Miranda warnings, did not unambiguously invoke his right to remain silent, and implicitly waived this right by proceeding to answer questions, his motion to suppress his statements to law enforcement officers on December 2, 2010, is DENIED.
VI. MOTIONS RELATED TO LAURENTâS REFUSAL TO PROVIDE DNA SAMPLE
Laurent has also made two motions with respect to his refusal to provide the Government with a sample of his DNA pursuant to two search and seizure warrants. First, Laurent moves to exclude from trial any reference to his conduct and statements in connection with two attempts by law enforcement to execute these warrants in 2011. (Omnibus Mot. at 41-42.) Second, Laurent moves to compel the Government to disclose both the DNA warrants and the underlying applications. (Id. at 43-46, 51.) Although they are related, the court proceeds by considering each motion separately.
A. Motion to Suppress Statements and Conduct in Response to Execution of Warrants
The Government has argued that Laurentâs refusal to provide a DNA sample pursuant to lawful search and seizure warrants is relevant evidence of his consciousness of guilt with respect to the Lux Bond & Green robbery. (Govât Mem. in Oppân at 36.) Laurent maintains, however, that his resistance is inadmissible under Federal Rules of Evidence 401 and 403, both because it is irrelevant and because the probative value of this evidence is substantially outweighed by its prejudicial effect. (Omnibus Mot. at 41-42.) For the following reasons, while certain evidence of Laurentâs refusal to submit to DNA testing is admissible, other evidence is not. As a result, the motion is GRANTED in part and DENIED in part.
1. Background
During October and November of 2011, Laurent was in federal custody pending trial on charges in a separate criminal case. See Order of Detention, United States v. Laurent, No. 11-CR-322 (JBW) (E.D.N.Y. Apr. 13, 2011), ECF No. 8. (See also Omnibus Mot. at 33.) At that time, WHPD Detective Mark Puglielli and NYPD Detective William Van Pelt were investigating the June 2010 robbery of the Lux Bond & Green jewelry store in West
At approximately 12:15 p.m. on October 20, 2011, the date the warrant was obtained, Detectives Puglielli and Van Pelt attempted to execute the warrant by meeting Laurent while he was in the custody of the U.S. Marshals Service in the Eastern District of New York. (Id. at 3.) After the detectives advised Laurent that they had obtained a warrant authorizing the swab, and showed him the court order, Laurent stated that his DNA was already on file and that his attorney had not told him about the warrant. (Id.) According to the detectives, Laurent further stated that he would not submit to swabbing and asked them if they were going to fight him to obtain his DNA sample. (Id.) After the detectives attempted to persuade Laurent to comply, Laurent allegedly grabbed the swab held by Detective Van Pelt, and snapped the stick portion of the swabbing. (Id.) As he was being escorted back to his cell, Laurent apparently told the detectives that they could âsuck his dick.â (Id.).
On November 14, 2011, Detective Van Pelt and two other WHPD officers, Juda and Cavedon, obtained another search warrant authorizing them to obtain a sam-pie of Laurentâs DNA by buccal swab. (Id. at 4.) On November 15, 2011, Detective Van Pelt and the officers attempted to execute this second search warrant during Laurentâs previously scheduled court appearance at the Kings County Courthouse, before New York State Supreme Court Judge Suzanne M. Mondo.
2. Discussion
Federal Rule of Evidence 401 provides that evidence is relevant if: â(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.â Pursuant to Rule 403, however, the court may exclude relevant evidence âif its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or need
Laurent argues first that his statements and conduct with respect to his refusal to provide a DNA sample are not relevant to whether he is guilty of the Lux Bond & Green robbery. (Def. Reply Mem. at 16 (âThe fact that Mr. Laurent uttered a profanity or overturned a table and chair has absolutely no tendency to make it more likely than not that he committed that crime. Mr. Laurentâs statements and conduct have nothing to do with racketeering, with his alleged membership in the Six Tre Folk Nation, or with the facts of the alleged robbery itself.â).) Second, Laurent insists that even if this evidence is relevant, it should be excluded from trial under Rule 403. (Omnibus Mot. at 41.) In support of this argument, Laurent points to the fact that he resisted execution of the DNA warrants because he was aware that his DNA was already on file. (Id.) As a result, he contends, the probative value of this evidence is substantially outweighed by the danger that the jury would infer that Laurent refused to provide a DNA sample out of fear that it would implicate him in the robbery. (Id. at 41^42.)
The Government counters that Laurentâs refusal to submit to swabbing is relevant evidence of his consciousness of guilt with respect to the jewelry store robbery, which it should be permitted to argue to the jury. (Govât Mem. in Oppân at 36.) Furthermore, the Government maintains that because Laurent is charged with murder, attempted murder, and multiple robberies, among other crimes, there is âlittle or no chanceâ of undue prejudice resulting from presenting evidence related to Laurentâs resistance to swabbing. (Id.) In reply, Laurent insists that consciousness of guilt is not a proper purpose for admitting evidence. (Def. Reply Mem. at 16.) Moreover, he asserts that by arguing that his refusal to provide a DNA sample demonstrates consciousness of guilt, the Government effectively âput[s] words in his mouth, against which he cannot defend himself without potentially endangering his Fifth Amendment right against self-incrimination.â (Id.) The court first takes up Laurentâs argument with respect to relevance under Rule 401 before conducting the Rule 403 analysis.
a. Rule k,01
i. Laurentâs Statements and Conduct
Laurentâs Rule 401 argument is correct, to a certain extent. With respect to the officersâ attempted execution of the October 20, 2011, search and seizure warrant, Laurentâs statements â asking the officers if they were going to fight him to obtain the DNA sample, and telling the officers that they could âsuck his dickââ and his conduct â snapping the test swab in half â render no fact of consequence in this case more or less probable. See Fed. R.Evid. 401. That is, the fact that Laurent demonstrated a cavalier and disrespectful attitude toward law enforcement says nothing about his consciousness of guilt.
ii. Laurentâs Resistance to Swabbing Generally
By contrast, evidence of the fact of Laurentâs refusal to submit to swabbing is relevant. This is because, as decisions by the Supreme Court and Second Circuit illustrate, the Government is permittedâ in certain circumstances â to offer evidence of such refusal as proof of a defendantâs consciousness of guilt in a criminal trial. In South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983), the Supreme Court held that a drunk-driving suspectâs refusal to take a blood-alcohol test, after a police officer had lawfully requested it, was not testimony coerced by the officer and was therefore not protected by the suspectâs Fifth Amendment right against self-incrimination. Id. at 563-64, 103 S.Ct. 916 (â[T]he values behind the Fifth Amendment are not hindered when the state offers a suspect the choice of submitting to the blood-alcohol test or having his refusal used against him.â). The Court reasoned that because the test was âsafe, painless, and commonplace,â and the state âcould legitimately compel the suspect, against his will, to accede to the test,â this action was âno-less legitimateâ when the state offered a second option of refusing the test, âwith the attendant penalties for making that choice.â
Just four days before the Court announced its decision in Neville, the Second Circuit decided United States v. Terry, 702 F.2d 299 (1983). In that case, after the defendants had been arrested, the government attempted on two occasions to obtain palm prints to determine whether any of their prints matched prints found on a paper bag containing heroin that had been seized on the day of their arrests. Id. at 314. The defendants refused, stating that they would not supply prints in the absence of their lawyers. Id. At trial, the court permitted the government to introduce these refusals as evidence of defendantsâ consciousness of guilt.
On appeal, the Second Circuit held that because the government had a right to obtain prints pursuant to a lawful custodial arrest, without the presence of counsel, the defendantsâ refusals to provide prints was admissible as evidence of consciousness of guilt. Id.; see also Grigg v. Phillips, 401 Fed.Appx. 590, 594 n. 2 (2d Cir.2010) (summary order) (citing Terry in finding that a defendantâs failure to provide fingerprints and participate in a lineup was admissible as evidence of consciousness of guilt). The court noted, however, that testimony regarding defendantsâ statements that they desired counsel was admissible under the exception to the hearsay rule provided by Federal Rule of Evidence 803(3), since their contemporaneous statements were relevant to each defendantâs state of mind, âi.e., whether they had a consciousness of guilt in refusing to furnish the prints or were acting in good faith.â Terry, 702 F.2d at 314.
Thus, taken together, Neville and Terry stand for the proposition that a defendantâs refusal to submit to the collection of a bodily substance through a safe, painless, commonplace â and lawfully requested â test may be properly admitted as evidence of his consciousness of guilt without violating the Fifth Amendment. See Neville, 459 U.S. at 563-64, 103 S.Ct. 916; Terry, 702 F.2d at 314. Since the collection of DNA by buccal swab is also a safe, painless, and commonplace procedure, the court therefore holds that the refusal to submit to valid search and seizure warrants authorizing such collection may be admitted, consistent with the Fifth Amendment, against a defendant as evidence of his consciousness of guilt. While neither party has cited, nor is the court able to identify, any binding precedent with respect to this specific issue, federal courts in other circuits have reached the same conclusion. See Wade v. Sheets, No. 09-CV-632, 2012 WL 870221, at *17-21 (S.D.Ohio Mar. 14, 2012), report and recommendation adopted, No. 09-CV-632, 2012 WL 4087238 (S.D.Ohio Sept. 17, 2012); United States v. Franklin, No. 99-CR-238, 2000 WL 217527, at *4 (E.D.Pa. Feb. 14, 2000) (âAs Mr. Franklin had been under lawful arrest when the blood sample was requested, we can see no infirmity in having permitted the defendantâs second refusal to be considered by the jury as circumstantial evidence of guilt.â), aff'd, 248 F.3d 1131 (3d Cir.2000). Cf. United States v. Harris, 660 F.3d 47, 52 (1st Cir.2011) (observing that â[w]hether a refusal to provide [DNA] evidence would permit a rational inference of guilt depends (like flight) on the circumstances,â but noting âevidence of such a refusal might well be impermissible under some circumstancesâ (citing United States v. Moreno, 233 F.3d 937, 940-41 (7th Cir.2000) (holding that a defendantâs refusal to consent to a war-rantless search may not be presented as evidence of guilt))).
The facts in Wade, in particular, closely parallel those in this case. There, the defendant refused to submit to DNA testing, even after being advised that police had a search warrant authorizing them to. use force, if necessary, to obtain a sample of his DNA. Wade, 2012 WL 870221, at *20 n. 5. Police eventually obtained a DNA sample from the defendant by restraining him on the floor, holding his nose, and
Similarly, Laurentâs refusal to submit to a buccal swab is relevant and probative evidence of his consciousness of guilt. There is no indication â and Laurent has not suggested â that either of the search and seizure warrants was legally invalid.
Of course, Laurent is entitled to introduce evidence that he refused swabbing because his counsel had not told him about the warrant, see Terry, 702 F.2d at 314, or because he believed law enforcement already had his DNA on file.
b. Rule WS Analysis
Even though evidence of the fact of Laurentâs refusal to provide a DNA sample is relevant, its admissibility remains subject to Rule 403 analysis. No federal court appears to have explicitly addressed the admissibility, in the Rule 403 context, of a suspectâs refusal to submit to a valid DNA warrant as evidence of consciousness of guilt.
3. Conclusion
In sum, the court holds that consciousness of guilt is a proper purpose for which the Government may offer certain evidence related to Laurentâs refusal to submit to valid DNA search and seizure warrants. To this end, the Government is permitted to introduce the fact of Laurentâs refusal to provide a DNA sample pursuant to a valid warrant on two separate occasions.
B. Motion to Compel DNA Search and Seizure Warrants
As the court explained, whether law enforcement officers have obtained a valid search and seizure warrant is a central issue in determining whether a suspectâs refusal to provide a DNA sample may be introduced as evidence of consciousness of guilt. See supra Part VI.A.2.a.ii. Here, the Government contends that the officers obtained court orders on October 20, 2011, and November 14, 2011. (See Case Reports at 2, 4.) Accordingly, the court concluded that Laurentâs refusals to provide a DNA sample may be introduced as evidence of his consciousness of guilt with respect to the Lux Bond & Green robbery. In his Omnibus Motion, however, Laurent indicates that he has not received a copy of either the October 20, 2011, or the November 14, 2011, search and seizure warrants authorizing the collection of his DNA by buccal swab. (Omnibus Mot. at 50.) As a result, Laurent has moved to compel the Government to disclose these documents, claiming that he is entitled to them under Federal Rule of Criminal Procedure 16. (Id. at 43-46, 51.) The Government has opposed this motion. (Govât Mem. in Oppân at 38.)
Rule 16 provides in relevant part that upon the defendantâs request, the Government âmust permit the defendant to inspect and to copy or photograph books, papers, documents ... or copies or portions of any of these items, if the item is within the governmentâs possession, custody, or control and; (i) the item is material to preparing the defense; [or] (ii) the government intends to use the item in its case-in-chief at trial.â Fed.R.Crim.P. 16(a)(1)(E). The Government argues that disclosure of the October 20, 2011, and
Laurent contends, however, that he is entitled to âany application made in relation to the DNA evidence.â
Laurentâs second argument is readily dismissed. Any report regarding a DNA test that is within the Governmentâs possession or control and is material to preparing Laurentâs defense must be disclosed pursuant to Rule 16(a). See Fed. R.Crim.P. 16(a)(1)(F) (further requiring that an attorney for the Government know â or through due diligence could know â that the item exists). In addition, âthe Government has a constitutional duty to disclose evidence favorable to the accused where such evidence is âmaterialâ to guilt or punishment,â including ânot only evidence that tends to exculpate the defendant, but also evidence that is useful to impeach, the credibility of a government witness.â United States v. Coppa, 267 F.3d 132, 139 (2d Cir.2001) (citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972)). Therefore, if the Government intends to introduce DNA evidence, to the extent the warrant application contains material favorable to Laurentâs defense, the Government is already under an obligation to disclose it. Moreover, in issuing its own search warrant authorizing the Government to do so, this court has already explained to Laurent and his counsel the basis for requiring Laurent to provide a sample of his DNA, even though a copy of his DNA profile
With respect to his first argument, Laurent does not clarify precisely how having access to the warrants and application would enhance his motion. Nevertheless, because the validity of the DNA search and seizure warrants is central to finding that the Government may introduce evidence of Laurentâs refusal to comply as evidence of consciousness of guilt, the court presumes that Laurent would seek to challenge the validity of those warrants in moving to suppress his response. On this basis, the court concludes that the warrants and applications are material. Evidence is material âif it could be used to counter the governmentâs case or to bolster a defense.â United States v. Stevens, 985 F.2d 1175, 1180 (2d Cir.1993). Materiality means more, however, âthan that the evidence in question bears some abstract logical relationship to the issues in the case. There must be some indication that the pretrial disclosure of the disputed evidence would have enabled the defendant significantly to alter the quantum of proof in his favor.â United States v. Maniktala, 934 F.2d 25, 28 (2d Cir.1991) (quoting United States v. Ross, 511 F.2d 757, 762-63 (5th Cir.1975)). If Laurent can prove that the warrants were invalid, he could be entitled to suppression of his refusal to provide a DNA sample. See, e.g., Runyan, 290 F.3d at 249 (noting that the circuit courts that have directly addressed this question âhave unanimously held that a defendantâs refusal to consent to a war-rantless search may not be presented as evidence of guiltâ). Therefore, this evidence bears more than just âsome abstract logical relationshipâ to the issues. Maniktala, 934 F.2d at 28. Rather, access to the warrant and application may enable Laurent to prevent the Government from arguing that his refusal to provide a DNA sample demonstrates his consciousness of guilt with regard to the Lux Bond & Green robbery, with which he is charged in the Indictment. (See Indictment ¶¶ 11, 44.) As a result, disclosure of these documents could enable Laurent to significantly alter the quantum of proof in his favor. See Maniktala, 934 F.2d at 28. Accordingly, they are material within the meaning of Rule 16.
Therefore, the Government is hereby ORDERED to disclose copies of the October 20, 2011, and November 14, 2011, DNA search and seizure warrants to Laurent.
VII. MOTION TO EXCLUDE LAURENTâS ALIAS
The Third Superseding Indictment alleged that Laurent is also known as âTailsâ and âGunner.â (Superseding Indictment (S â 3) (Dkt. 71) at 1.) In his Omnibus Motion, Laurent moved pursuant to Federal Rule of Evidence 403 to (1) exclude from trial any reference to the alias âGunnerâ and (2) to redact this alias from the Third Superseding Indictment as well. (Omnibus Mot. at 42-43.) In its response, however, the Government indicated that it did not oppose this motion. (Govât Mem. in Oppân at 44 n. 18.) Additionally, all references to the alias âGunnerâ were removed from the Fourth Superseding Indictment, which was docketed on December 5, 2014, after the parties had briefed this motion. (Compare Superseding Indictment (S-4) (Dkt. 237) at 1, ¶¶ 6, 8, 33, 35, 40, 42-46, with Superseding Indictment (S-3) at 1, ¶¶ 2, 7, 27, 38-39, 41^2, 49-51.) As a result, this motion is DENIED as moot.
VIII. MOTION TO COMPEL DISCOVERY
Finally, Laurent moves to compel certain additional disclosures under Rule 16 and Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). (See generally Omnibus Mot. at 43-56.) Since the parties briefed this motion, however, Rule 16 and Brady disclosures have been the subject of numerous letters exchanged between the parties. (See, e.g., Oct. 16, 2014, Govât Ltr. (Dkt. 204); Oct. 23; 2014, Def. Ltr. (Dkt. 209); Nov. 11, 2014, Govât Ltr. (Dkt. 224); Nov. 12, 2014, Govât Ltr. (Dkt. 225); Dec. 10, 2014, Govât Ltr. (Dkt. 240); Dec. 12, 2014, Govât Ltr. (Dkt. 241); Dec. 16, 2014, Govât Expert Ltr. (Dkt. 242); Dec. 16, 2014, Govât Brady Ltr. (Dkt. 243); Dec. 23, 2014, Def. Ltr. (Dkt. 248); Dec. 23, 2014,. Govât Ltr. (Dkt. 249); Dec. 29, 2014, Govât Ltr. (Dkt. 251).) Moreover, subsequent to his Omnibus Motion, Laurent also filed a separate Motion to Compel Discovery (Mot. to Compel (Dkt. 217)), to which the Government has responded (Govât Resp. in Oppân to Mot. to Compel (Dkt. 226)), and to which Laurent has replied (Def. Reply (Dkt. 231)). Consequently, with the exception of Laurentâs motion to compel disclosure of the October 20 and November 14, 2011, DNA search warrants and applications, the court decides to hold this motion in abeyance pending Laurentâs response to the Governmentâs later disclosures.
As a result, Laurent is ORDERED by Monday, January 12, 2015, to submit a letter to the court explaining the extent to which his Motion to Compel Discovery (Dkt. 217) and the present motion to compel (Omnibus Mot. at 43-56), remain live. Accordingly, this motion is GRANTED in part, with respect to the DNA search and seizure materials, and STAYED in part, with respect to the remainder.
IX.CONCLUSION
Accordingly, for the reasons set forth above:
âą Laurentâs Motion to Suppress Cell-Site Records is DENIED;
âą Laurentâs Motion to Suppress Text Messages is DENIED as moot;
âą Laurentâs Motion to Exclude Merrittâs Statements (as modified, see supra note 24) is DENIED;
âą Laurentâs and Merrittâs Motions to Sever are DENIED;
âą Laurentâs Motion to Suppress Statements to Law Enforcement is DENIED;
*452 âą Laurentâs Motion to Suppress Statements and Conduct in Connection with His Refusal to Provide a DNA Sample is GRANTED in part and DENIED in part;
âą Laurentâs Motion to Exclude Alias is DENIED as moot;
âą Laurentâs Motion to Compel Discovery .is GRANTED in part and STAYED in part. The Government is ORDERED to disclose the 2011 DNA search and seizure warrants. It is further ORDERED by Friday, January 9, 2015, to show cause why the underlying applications should not also be disclosed. Laurent is also ORDERED, by Monday, January 12, 2015, to file a letter explaining the extent to which his two motions to compel discovery remain live.
SO ORDERED.
. This Indictment replaces the Third Superseding Indictment (Dkt. 71), which was filed on November 15, 2012, and named five additional defendants, each of whom has since pleaded guilty. (See also Dec. 5, 2014, Govât Ltr. (Dkt. 238) (further explaining differences between the Third and Fourth Superseding Indictments).)
. Ashburn is named in connection with two individual RAs; Laurent is named in connection with eight individual RAs; and Merritt is named in connection with four individual RAs.
. All citations to pages of the parties' exhibits correspond to the page numbering assigned by the courtâs electronic docketing system (ECF). By contrast, all citations to pages of the parties' memoranda correspond to the partiesâ page numbers.
. It was later determined that the two men stole 20 Patek Philippe watches, with a total approximate value of $583,250.00. (4017 Application and Order at 3.)
. Statements made by Defendant Trevelle Merritt regarding the circumstances surrounding this murder are also the subject of Laurentâs motion to exclude. See infra Part III.
. The 6638 Application and Order does not state how the toll records were obtained.
. Significantly, Laurent has not alleged a statutory violation in the issuance of either judicial order in this case.
. The court further held that the so-called third-party disclosure doctrine did not apply because âcell phone users have a reasonable expectation of privacy in cumulative cell-site location records, despite the fact that those records are collected and stored by a third party.â Historical Cell-Site Info, 809 F.Supp.2d at 126.
. In Rakas, the Supreme Court explained that because "Fourth Amendment rights are personal in nature,â "the definition of those rights is more properly placed within the purview of Fourth Amendment law than within that of standing.â 439 U.S. at 140, 99 S.Ct. 421; see also Minnesota v. Carter, 525 U.S. 83, 87-88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (citing Rakas, 439 U.S. at 139-40, 99 S.Ct. 421). Consequently, as many courts have observed, "the question of whether a defendant has âstandingâ to bring a Fourth Amendment challenge is more properly subsumed under the substantive analysis of whether the defendantâs Fourth Amendment rights were violated.â United States v. Haqq, 278 F.3d 44, 52 (2d Cir.2002) (Meskill, J., concurring) (citing Rakas, 439 U.S. at 139-40, 99 S.Ct. 421). Nevertheless, the court finds the concept of "standingâ useful in distinguishing between the question of whether Laurent has a reasonable expectation of privacy with respect to cell phones subscribed to by his father and the analysis with respect to whether the Governmentâs obtaining cumulative historical cell-site records constitutes a Fourth Amendment search. See, e.g., United States v. Cody, 434 F.Supp.2d 157, 163 n. 3 (S.D.N.Y.2006) (citing United States v. Fields, 113 F.3d 313, 320 (2d Cir.1997) ("A defendant lacks standingâ in the Fourth Amendment context when his contacts with the searched premises are so attenuated that no expectation of privacy he has in those premises could ever be considered reasonable.â)).
. The court notes that the Government has not opposed Laurentâs motion to suppress on standing grounds.
. Although "the warrant requirement is subject to exceptions,â e.g., Missouri v. McNeely, - U.S. -, 133 S.Ct 1552, 1558, 185 L.Ed.2d 696 (2013), the Government has not argued that the request for this data was justified by any such exception.
. In dicta, the majority rejected this sliding-scale approach to determining whether the Government had effected a Fourth Amendment search. Id. at 954.
. In this regard, the Government highlights Justice Alito's observation that "the best solution to privacy concerns may be legislative,â and that "Congress and most States have not enacted statutes regulating the use of GPS tracking technology for law enforcement purposes.â (Govât Mem. in Opp'n at 18 (quoting Jones, 132 S.Ct. at 963-64).) The Government points out, however, that unlike GPS data, both Congress and Connecticut have enacted statutes governing the release of cell-site data to law enforcementâthe SCA and section 54-47aa. {Id.) As a result, the Government invites this court to reevaluate its holding in Historical Cell-Site Info, since "the Justices who joined Justice Alitoâs concurrence may well find the balance struck by Congress in the SCA a reasonable one.â (Id.)
. In fact, as the Government points out, the officers in Krull had relied on a statute that authorized warrantless administrative searches, which required no ex ante judicial ratification. (Gov't Mem. in Oppân at 15.) Here, by contrast, the Government relied on not only statutes, but also on judicial authorization.
.Significantly, the Second Circuit has still not directly decided the constitutionality of § 2703(d). In United States v. McCullough, 523 Fed.Appx. 82 (2d Cir.2013) (summary order), a non-precedential decision, the panel denied the defendant-appellantâs claim for ineffective assistance of counsel on the basis of trial counsel's failure to move to suppress historical cell-site data. Id. at 83. This required the defendant to prove both ineffective assistance and prejudice. Id. In rejecting his argument, the Second Circuit reasoned that the defendant had not pointed to any case law predating the governmentâs acquisition of the records in June 2008 that would have rendered § 2703(d) âclearly unconstitutionalâ when applied to its request for historical cell-site data. Id. at 83-84. As a result, the court held that the defendant could not establish prejudice because law enforcement officers would have been entitled to rely on the good faith exception. Id. (citing Krull, 480 U.S. at 349-50, 107 S.Ct. 1160). See also United States v. Pascual, 502 Fed.Appx. 75, 80 (2d Cir.2012) (summary order) (finding no plain error in the district court's refusal to follow this courtâs decision in Historical Cell-Site Info, 809 F.Supp.2d 113, which, it held, was â(at the very least) in some tension with prevailing case lawâ (citing Smith v. Maryland, 442 U.S. 735, 742-44, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976))).
If the Governmentâs request for historical cell-site records were not authorized under the SCA or section 54-47aa, the fact that the Second Circuit had not directly decided whether the search was constitutional may have given rise to a related issue: whether the good faith exception can apply in the absence of binding appellate precedent. This question has divided district courts. See, e.g., United States v. Lopez, 951 F.Supp.2d 657, 666 (D.Del.2013) (collecting cases).
. Laurent himself acknowledges several of the decisions that had been issued prior to Magistrate Judge Pohorelskyâs order in this case. (See Omnibus Mot. at 19 n. 16 (citing United States v. Benford, No. 09-CR-86, 2010 WL 1266507 (N.D.Ind. Mar. 26, 2010); United States v. Suarez-Blanca, No. 07-CR-23 (MHS)(AJB), 2008 WL 4200156 (N.D.Ga. Apr. 21, 2008) (report and recommendation); In re Applications of United States for Orders Pursuant to Title 18, U.S.Code, Section 2703(d), 509 F.Supp.2d 76 (D.Mass.2007)).)
. Notably, Jones does 'not appear to have substantially altered the state of the law as to historical cell-site records. After Jones, as before, most courts â including in this district' â continued to find that a § 2703(d) order is sufficient without a warrant. See In re Application of United States for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir.2013); United States v. Moreno-Nevarez, No. 13-CR-0841 (BEN), 2013 WL 5631017, at *2 (S.D.Cal. Oct. 2, 2013); In re Smartphone Geolocation Data Application, 977 F.Supp.2d 129, 147 (E.D.N.Y.2013); United States v. Wilson, No. 1 1-CR-53, 2013 WL 1129199, at *4 (N.D.Ga. Feb. 20, 2013); United States v. Madison, No. 11-CR-60285, 2012 WL 3095357, at *9 (S.D.Fla. July 30, 2012); In re Application of United States for an Order Pursuant to Title 18, U.S.Code, Section 2703(d) to Disclose Subscriber Info. and Cell Site Info., 849 F.Supp.2d 177, 179 (D.Mass.2012); United States v. Graham, 846 F.Supp.2d 384, 387 (D.Md.2012). As a counter-example, Laurent points to United States v. Davis, 754 F.3d 1205 (11th Cir.2014), which reached the opposite conclusion. After Laurent filed his Omnibus Motion, however, the Eleventh Circuit granted a petition for rehearing en banc, and vacated the Davis panelâs decision. 573 Fed.Appx. 925 (11th Cir.2014) (Mem.).
. Magistrate Judge Orenstein had also granted requests for similar data in the past. See
. Laurent has also moved to suppress text messages from the 6638 phone, which the Government obtained from the cellular service provider pursuant to Magistrate Judge Pohorelskyâs order. (Omnibus Mot. at 22.) The Government indicated, however, that it will not seek to admit the contents of the messages into evidence at trial, as the messages appeared to have been obtained and produced in error. (Govât Mem. in Oppân at 4 n. 3.) As a result, this motion is DENIED as moot.
. Cell phone records obtained by the Government indicate that Laurent called James minutes before Jamesâs murder, but that Laurent never called James again. (6638 Application and Order at 4.)
. Laurent further argues that the Government could use the attempted robbery and murder of Dasta James to prove the conspiracy to murder charged in Racketeering Act ("RAâ) 1, in which Laurent is also named. (Omnibus Mot. at 26.) RA 1 charges all three
. The Government indicates that it will seek to introduce evidence â other than Merrittâs statements â -regarding Laurentâs participation in the attempted murder and robbery of Dasta James, as proof of the existence of the criminal enterprise. (Govât Mem. in Oppân at 21 n. 12 (citing United States v. Baez, 349 F.3d 90, 93 (2d Cir.2003)).) The Government claims that under Federal Rule of Evidence 404(b), such proof is also admissible, with respect to Laurent as evidence of his knowledge, intent, and identity, and the absence of mistake with regard to other charged crimes. {Id.) Because these arguments are the subject of the Governmentâs Motion to Admit Evidence of Other Acts (Dkt. 197), the court will address them in a separate Memorandum and Order.
. As the Second Circuit has previously observed, "[t]he,same attenuation of [the declar-antes statements from [his co-defendants]â guilt that prevents Bruton error also serves to prevent Crawford error. Thus, there is no separate Crawford problem, and we see no indication that Crawford overrules Richardson or expands the holding of Bmton.â United
. The court notes that these substitutions would be made even less awkward still by further altering the last phrase in each. See Jass, 569 F.3d at 62 n. 7 (encouraging district courts to use their "good senseâ to redact statements âmore plausiblyâ). Thus, the court requires that the Government remove "about going downtown come from around the cornerâ from the first sentence. The latter part of the second sentence should also be modified to read as "the guy he fist-bumped.â
. Laurent also moves to suppress statements that he made to law enforcement officers on July 12, 2010, regarding the murder of Brent Duncan. (Omnibus Mot. at 40.) In Racketeering Act 4 of Count One (racketeering), Laurent is charged with murder in connection with Duncanâs death. (Indictment ¶ 12.) Laurent is also charged in Count Five with murder in-aid-of racketeering for the same crime. (Id. UK 39-40.) While the Govern
. The Case Report reflects that at the time of the interview, Laurent was a suspect in the robbery. (Case Report at 2.)
. The precise circumstances under which the interview proceeded are unclear, and the Case Report is silent on this question. (See Case Report at 2-3. Compare Govât Mem. in Oppân at 30 ("Nonetheless, Laurent elected to proceed with the interview and did not ask to consult with an attorney.â), with Omnibus Mot. at 35 ("Nonetheless, the officers continued to question him.â).)
. Therefore, even if Laurent was in fact escorted to and from the Intelligence Unit â for which there is no evidence â this would not distinguish his case from Howes. See also id. at 1192 ("[S]uch procedures are an ordinary and familiar attribute of life behind bars. Escorts and special security precautions may be standard procedures regardless of the purpose for which an inmate is removed from his regular routine and taken to a special location.â).
. Thus, although the prisoner in Howes was told he was free to leave at the onset of the interview, this does not render Laurent's circumstances inherently more coercive, particularly because Laurent received Miranda warnings.
. While the Second Circuit declined to decide "whether a refusal to sign a waiver-of-rights form could, itself, ever amount to sufficient action to trigger the ... prophylactic rule ... it suffice[d] to say, as the facts of this case amply demonstrate, that such a refusal will not always constitute 'sufficient actionâ particularly where, as here, it is accompanied by statements indicating ambivalence or uncertainty." Plugh, 648 F.3d at 126 (emphasis in original) (internal quotation marks omitted). This caveat does not affect the court's analysis in this case, where Laurent's conduct was even less likely than the defendant's conduct in Plugh to reasonably put the officers on notice that he was invoking his right to remain silent.
. Laurent is charged in connection with the robbery of employees of jewelry stores in New York, New Jersey, and Connecticut in Racketeering Act 3 of Count One (racketeering) and Count Eight (Hobbs Act robbery conspiracy) of the Indictment. (See Indictment ¶¶ 11, 44.) The circumstances surrounding the June 2010 robbery of Lux Bond & Green are set forth in detail in Part II.A. 1 supra.
. Laurent was scheduled to appear before Judge Mondo in connection with Laurent's indictment in a separate New York State criminal matter, People v. Laurent, Indictment No. 6052/2010. (Omnibus Mot. at 32-33, 37.)
. The Supreme Court has explained that âunfair prejudiceâ means "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.â Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997) (quoting Fed.R.Evid. 403 advisory committeeâs note); see also United States v. McCallum, 584 F.3d 471, 476 (2d Cir.2009).
. The court presumes, for the sake of Rule 401 analysis, that consciousness of guilt is a
. South Dakota's motor vehicle law expressly provided that the refusal to submit to a chemical test or to allow a withdrawal of bodily substances could be used against a defendant at trial. S.D. Codified Laws §§ 32-23-10.1, 19-13-28.1 (originally enacted at Session Law 1980, Ch. 230, §§ 1, 2). Accord Deering v. Brown, 839 F.2d 539, 541-44 (9th Cir.1988) (holding that a defendantâs refusal to submit to a blood test is not testimonial and not compelled and therefore admissible to show consciousness of guilt, even if such refusal is a criminal offense in its own right, under Alaska law).
. The government also sought to admit their refusals to explain why the governmentâs fingerprint expert had not identified the print on the paper bag, after that fact had been brought out by defense counsel. Terry, 702 F.2d at 314.
. But see generally infra Part VLB.
. In this respect, United States v. Mitchell, No. 06-CR-20034 (JWL), 2006 WL 3246915, at *4 (D.Kan. Nov. 8, 2006), is instructive. There, the defendant refused officersâ request for a DNA sample, contending that they already had a DNA sample on file. Id. The court understood the defendant to be referring to the sample collected by the Department of Corrections for all convicted felons. Id. In finding that the officers nevertheless had a legitimate reason to collect his DNA, the court noted that one of the detectives testified that there was no chain of custody on the other sample, which rendered it inadmissible in court. Id. ("Consequently, they needed a new DNA sample from which they could legitimize, or preserve, a chain of custody.â). The court went on to reject defendantâs argument that his statements in response to the request for a DNA sample were inadmissible under the Fifth Amendment because they were obtained in response to "interrogationâ within the meaning of Miranda, 384 U.S. 436, 86 S.Ct. 1602. Mitchell, 2006 WL 3246915, at *4.
. Laurent's conduct in the conference room after his court appearance on November 15, 2011, would still not be relevant to his state of mind regarding consciousness of guilt. But see infra, note 40.
. Laurentâs behavior on both dates that he refused to be swabbed, including on November 15, 2011, is also relevant and thus admissible if Laurent suggests â which, to this point, he has not â that the officers did not make a genuine, good faith attempt to execute the warrant on either date. In that case, his November 15 behavior is relevant because it was only after officers learned that he overturned the table and chair that they decided not to further pursue obtaining a sample of his DNA that day. (Case Reports at 5.)
. In Franklin, however, the district court excluded one of the defendantâs two refusals to submit to a valid DNA warrant. See 2000 WL 217527, at *4 n. 1. The court explained that in its instructions, "[it] told the jury not to consider defendantâs first refusal.... Although we did not tell the jury why, we did so because his first refusal was so he could seek advice of counsel who told him to cooperate. The second refusal was relevant to show why the F.B.I. had to rely on blood samples on the defendantâs clothing and to show an effort to conceal from which the jury might infer consciousness of guilt.â Id. (internal citation omitted). Nonetheless, it did not explain the legal basis for its instruction with respect to the defendantâs first refusal, and this court declines to engage in speculation on this point.
.In this regard, the court notes that a small number of state courts have also conducted Rule 403-style balancing tests with respect to the admission of defendantsâ refusals to provide DNA samples. Where defendants have refused to submit to lawfully requested DNA tests, these courts appear to consistently find that that the probative value of this evidence with respect to consciousness of guilt is not substantially outweighed by the danger of unfair prejudice. See, e.g., Thomas v. State, 397 Md. 557, 919 A.2d 49, 60-63 (2007) (â[A]ny possible prejudicial effect of appellantâs struggle to avoid the drawing of blood did not so clearly outweigh the probative value of the
. The court believes the Government is still attempting to obtain a DNA sample from Laurent. If the Government does in fact obtain this sample before trial, Laurent may renew his motion to exclude evidence of his prior refusals.
. But see supra note 43. If the Government does obtain a sample of Laurent's DNA, presumably this argument is moot.
. Laurent has offered, however, to abandon this request in the event the Government agrees not to offer "any testimony surrounding the state court's order for.his DNA, [his] appearance in court pursuant to that order, his reaction to the court order compelling the taking of his DNA, and his statements regarding that request.â (Omnibus Mot. at 51.)
. In this regard, the court notes that the Government claims to have shown the October 20, 2011, warrant to Laurent himself during the officers' attempt to execute it. (See Case Reports at 3.)
. For example, production of the underlying applications may be bared by Rule 16(a)(2) if they contain documents "made by an attorney for the government or other government agent in connection with investigating or prosecuting the case.â The court further notes that Rule 16 does not authorize the discovery or inspection of "statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500.â Fed. R.Crim.P. 16(a)(2).