On November 13, 2019, defendant was charged, in a twelve-count superseding indictment, with various crimes involving narcotics distribution, firearms, violence, and witness intimidation (the “Indictment”). (Dkt. No. 84) Counts 1 through 6 charge defendant with: (1) engaging in a continuing criminal enterprise or “CCE” from in or before 2012 though November 2018; (2) conspiracy to distribute heroin and cocaine from in or before 2012 through November 2018; (3) the murder of Ryan Thurnherr on October 16, 2018, while engaging in a CCE and narcotics conspiracy; (4) tampering with a witness on October 16, 2018 by causing the murder of Thurnherr with the intent to prevent Thurnherr's communication to a law enforcement officer and judge of the United States regarding information relating to the commission of federal offenses; (5) discharge of a firearm causing the death of Thurnherr on October 16, 2018, in furtherance of crimes of violence and drug trafficking; and (6) discharge of a firearm in furtherance of crimes of violence and drug trafficking on October 16, 2018. (Id.) The narcotics conspiracy charged in Count 2 also alleges that heroin distributed in furtherance of the conspiracy caused the death of M.O., a person known to the grand jury. (Id.) Counts 7 through 12 charge defendant with: (7) possession of heroin with intent to distribute on January 19, 2016; (8) using and maintaining a drug premise at 410 Northland Avenue, Buffalo, New York, from in or about late 2015 through January 19, 2016; (9) possession with intent to distribute, and distribution of, heroin on June 3, 2016; (10) possession with intent to distribute, and distribution of, heroin on June 7, 2016; (11) possession with intent to distribute, and distribution of, heroin on June 15, 2016; and (12) using and maintaining a drug premise at 24 Harbour Pointe Commons, Buffalo, New York, from on or about November 2017 through on or about November 30, 2018.[1] (Id.) The Indictment also includes a forfeiture allegation encompassing currency, a Chevrolet Tahoe and other personal property. (Id.)

*2 Defendant filed pre-trial motions including a motion to suppress evidence found during a search of 24 Harbour Pointe on November 30, 2018.[2] (Dkt. Nos. 80, 118, and 119) The Government responded (Dkt. Nos. 82, 120) and defendant filed a reply on May 20, 2020 (Dkt. No. 123). The Court heard oral argument on July 24, 2020, at which time it scheduled an evidentiary hearing to address defendant's motion to suppress evidence recovered from the search of 24 Harbour Pointe on November 30, 2018. (Dkt. 134) The hearing was held on August 28, 2020 and included the testimony of Drug Enforcement Administration (“DEA”) Special Agent David Lauer and DEA Task Force Officer Kevin Gallagher. (Dkt. No. 135) Post-hearing briefs were submitted by defendant and the Government on October 28, 2020 (Dkt. Nos. 141 and 142) and responses were filed on November 12, 2020 (Dkt. Nos. 146 and 147). The Court heard oral argument on November 24, 2020, at the conclusion of which the Court requested an additional submission by the Government. The Government filed the requested submission on December 8, 2020 (Dkt. No. 153), and the Court considered the matter submitted at that time.

Findings of Fact

David Lauer testified that he has been an agent with the Drug Enforcement Agency (“DEA”) for approximately twenty-two years. (Dkt. No. 136, pg. 7) Over the course of his career, Agent Lauer has participated in more than a hundred searches. (Id. at 8) Lauer explained that some of those searches involved the execution of search warrants while others occurred after an individual consented to the search. (Id.) Lauer testified that when he seeks consent to search an individual's residence, he is trained to ensure that it is obtained in a voluntary setting and not coerced in any way. (Id.) To that end, he seeks to “create a setting where [the individual] understands that they're able withdraw consent at any point.” (Id.)

On November 30, 2018, Agent Lauer was part of an arrest team surveilling 24 Harbour Pointe Commons, Buffalo, New York. (Id. at 9) The team was waiting for Donte Walker to potentially depart the residence. (Id.). Lauer explained that during their investigation of Walker, officers identified 24 Harbour Pointe as a residence shared by Walker and his girlfriend, Jaila Ivey. (Id. at 13, 34) While waiting for Walker to exit 24 Harbour Pointe, Lauer and the other members of the team were informed that Walker had been arrested at an alternative location. (Id. 10) Agent Lauer testified that members of the team were also aware, through their investigation, that Ivey worked at a hair salon located a short distance from 24 Harbour Pointe. (Id. at 10-11) Thus, after learning of Walker's arrest at another location, Lauer and three other members of the team drove to Ivey's work location to seek Ivey's consent to search 24 Harbour Pointe. (Id. at 10)

Upon entering the hair salon, Lauer and another officer approached Ivey and identified themselves as law enforcement agents. (Id. at 11) Lauer testified that he was wearing a black jacket with a badge visible on the upper left part of his chest. (Id. at 12) Lauer and the other officer did not display their weapons or make any commands. (Id. at 12-13) Lauer testified that he showed Ivey his badge, explained that he was a special agent with the DEA, and asked if she would like to have a private conversation outside of the salon, which she agreed to do. (Id. at 13)

After exiting the hair salon, Ivey and the officers proceeded to have a conversation in Lauer's police vehicle. (Id. at 13-14) Ivey was seated in the backseat and Lauer and the other officer were seated in the front. (Id.) Lauer testified that Ivey was not handcuffed, and that the officers did not yell at her or lay hands on her. (Id. at 14) Lauer advised Ivey that she was not under arrest and that she could stop speaking with the officers at any point. (Id. at 13, 43) Agent Lauer explained to Ivey that DEA agents arrested Walker earlier that day “for Title 21 violations based on the fact [officers] suspected he was a drug dealer.” (Id.) Lauer then asked Ivey if she would agree to allow the officers to conduct a search of 24 Harbour Pointe. (Id.) Specifically, Lauer testified that he “informed Ms. Ivey that [officers] suspected that there were potential dangerous drugs that were maintained at [her and Walker's] shared apartment and [asked] if [officers] could have consent to go to the apartment and search it for the dangerous drugs.” (Id. at 13, 37) Lauer testified that Ivey verbally agreed to the search of 24 Harbour Pointe at that time. (Id. at 14) Ivey also agreed to allow the officers to transport her back to the residence to conduct the search. (Id.)

*3 Ivey and the officers proceeded to 24 Harbour Pointe. (Id. at 14-15) Ivey provided the agents with a key to unlock the residence.[3] (Id. at 15) Lauer testified that upon entering the residence, officers advised Ivey to remain by the threshold of the front door. (Id.) Three officers, including Lauer, drew their weapons and proceeded to “secure and clear” the residence for officer safety. (Id. at 15, 39) Lauer testified that it took no more than two minutes to clear the residence, and Ivey then entered with the remaining officers. (Id. at 15) Officers then asked Ivey to execute a written consent form permitting the search of the residence. (Id. at 16-17; Exh. 1) Officers explained what the form was and showed Ivey where to sign. (Id.) Ivey signed the form. (Id.) Lauer testified that Ivey was very cooperative during the execution of the consent to search form. (Id. at 44) He further testified that she not crying and that she was not upset. (Id.)

After Ivey signed the consent to search form, Lauer and the other officers commenced a search of the residence. (Id. at 18) Lauer asked Ivey to narrow the search by showing them places where Walker may have maintained or stored items in the apartment. (Id.) Ivey pointed out the location of her and Walker's shared bedroom, and the officers focused the beginning of their search there, (Id.) Lauer testified that the bedroom contained a bed, a chest of drawers, and two separate closets, one maintained by Ivey and the other maintained by Walker. (Id.) Lauer testified that, to the best of his recollection, Walker's closet did not have a lock. (Id. at 40) Lauer asked Ivey if there were any specific locations where Walker maintained United States currency, and Ivey pointed to a chest of drawers where she had observed Walker store money. (Id. at 18) Lauer proceeded to open two of the drawers, which were not locked. (Id.) He found large amounts of United States currency inside. (Id.) Lauer testified that Task Force Officer Kevin Gallagher, who was also searching the bedroom at that time, found a plastic bag containing a large amount of a white powdery substance in a closet. (Id. at 21) Officers suspected the substance to be heroin. (Id.) Lauer testified that the officers then proceeded to search the entire apartment. (Id. at 21) They discovered a vacuum sealer, sealer bags, and a money counter in the kitchen, all of which were seized. (Id. at 22) The officers also found a large sum of United States currency in a purse belonging to Ivey. (Id.) Ivey informed the officers that the money was hers, and that she earned it working at the hair salon. (Id.) Lauer testified that the money discovered in the purse was left at the residence. (Id.) Lauer also testified that during the entirety of the search, Ivey never withdrew her consent. (Id. at 45)

Kevin Gallagher testified that he is employed by the New York State police and that he currently serves as a task force officer for the DEA. (Id. at 46) Officer Gallagher testified that he was part of the search team at 24 Harbour Pointe on November 30, 2018. (Id. at 47) Specifically, Gallagher searched the living room and an upstairs bedroom. (Id. at 50) Gallagher testified that he found what he believed to be a controlled substance on the floor of a closet in the upstairs bedroom. (Id. at 50-52, 62) He also found an envelope containing personal papers and narcotic test kits on a shelf in the closet. (Id. at 51-53) Gallagher testified that he believed the closet belonged to Walker, and that there were no locks on the closet nor were there any obstructions in front of it. (Id. at 51, 64) Gallagher also testified that he “exchang[ed] pleasantries” with Ivey during the search. (Id. at 54-55) Gallagher described Ivey's demeanor as “very accommodating” and “friendly.” (Id. at 55) Gallagher never observed Ivey cry or appear upset. (Id. at 60) Gallagher testified that he never displayed a firearm, placed hands on Ivey, or yelled at Ivey. (Id. at 55)

*4 Agent Lauer testified that at the conclusion of the search, the officers asked Ivey if she was willing to come to the DEA office with them for a follow-up interview. (Id. at 25) Ivey agreed to the interview, and also agreed to be transported to the office by the officers. (Id.) Upon arriving at the DEA office, Lauer and another agent placed Ivey in an interview room. (Id.) They again advised her that she was not under arrest, and issued her Miranda warnings. (Id.) The interview was audio and video recorded.[4] (Id.; Exh. 3) The video shows that the conversation between Ivey and the agents lasted approximately sixteen minutes, and was calm, polite and friendly. (Exh. 3) Specifically, Ivey answers ail of the officers’ questions in a cordial and cooperative manner, and at no point during the interview does Ivey appear to be upset, crying, or under duress. (Id.) The interviewing officers never raise their voices nor do they threaten Ivey in any way. (Id.) After viewing the video during the hearing, Lauer testified that Ivey's demeanor and attitude during the interview were the same as her demeanor and attitude during the search of 24 Harbour Pointe. (Id. at 28-29) Lauer also testified that his demeanor and tone of voice were the same during the interview as they were during the search. (Id. at 29) Also over the course of the interview at the DEA office on November 30, 2018, Ivey signed a consent form permitting the officers to search her cellular phone. (Id. at 29, Exh. 4)

After having the opportunity to listen to Agent Lauer and Officer Gallagher and observe their demeanors during the hearing, the Court finds them to be wholly credible.

Defendant did not testify at the evidentiary hearing nor did he call any witnesses.[5] Instead, defendant offers an affidavit from Jaila Ivey in support of his motion to suppress the evidence discovered at 24 Harbour Pointe on November 30, 2018. (Dkt. No. 119, Exh. C) In her affidavit, Ivey states that she has been dating Walker since 2014 and that she and her daughter were living with Walker at 24 Harbour Pointe on November 30, 2018. (Id. at ¶¶ 3-4, ¶10) Ivey states that she is the owner of Touch of Paris Hair Salon and that she was working there the morning of November 30, 2018, when two men entered the salon, identified themselves as DEA agents, and informed her that she needed to speak with them about Walker. (Id. at ¶12, ¶15, ¶21) Ivey went outside with the officers, who told her that Walker was arrested and asked if she had observed him with guns or drugs. (Id. at ¶¶22-24) Ivey states that the officers then told her that “they would have to go to [her] apartment to make sure that there were no drugs in [her] apartment because the drugs could potentially harm [her] children.” (Id. at ¶26) Ivey states that the officers instructed her to accompany them to her residence and that, when they arrived, an officer told her that she had to open the door to allow them to look for drugs. (Id. at ¶27, ¶¶33-35) Ivey states that she did not believe that she had the right to deny agents access to her apartment, and that none of the officers told her that she could refuse consent. (Id. at ¶36)

*5 Ivey further states that during the search of 24 Harbour Pointe, an officer told her that she needed to tell them if there was anything illegal inside the residence because if she did not, she would be “in trouble” for whatever they found. (Id. at ¶43) Ivey states that the closet in her and Walker's shared bedroom belongs to Walker, she does not keep any belongings there, the door is always closed, and she does not look inside for any reason. (Id. at ¶¶45-47) Ivey states that during the course of the search, an officer alerted her to items found in Walker's closet and said that if she did not tell the truth about who owned the items, she was going to jail. (Id. at ¶44, ¶48) Ivey states that she began to cry at this time. (Id. at ¶49) Ivey states that an agent informed her that he was speaking to Walker on the telephone, and that Walker told him that everything in the residence belonged to Ivey. (Id. at ¶50) Ivey also states that the officers put a number of items found during the search in plastic bags. (Id. at ¶¶51, 52) Ivey states that two officers gave her a paper to sign and told her that she had to sign it in order for the officers to take the items. (Id. at ¶¶54-55) Ivey states that she did not read the paper before signing it because she was upset, stressed out, and crying. (Id. at ¶57)

The credible, detailed and live testimony of Agent Lauer and Officer Gallagher contradicts many of the statements in Ivey's affidavit regarding the circumstances of the search. Specifically, the officers’ credible testimony belies Ivey's claims that (1) the officers told her that she had to open the door and allow them to search the apartment for drugs which could be a danger to her children; (2) that she was upset and crying during the search as well as when she signed the consent to search form; and (3) that she did not understand either the consent to search form or that she could deny the officers access to her residence. Likewise, the credible testimony does not support Ivey's assertions that the officers told her she had to sign the form in order for them to remove items from the home. In fact, Agent Lauer credibly testified that he asked for Ivey's consent to search the residence; told her she was not under arrest; and informed her that she did not have to speak with the officers. Lauer credibly testified that officers explained the consent to search form to Ivey, and both Lauer and Officer Gallagher testified that Ivey was neither upset nor crying during the search. The live, credible testimony, which was subject to cross-examination, plainly differs from Ivey's assertions to the contrary. For these reasons, the Court declines to credit any of the statements in Ivey's affidavit which contradict the officers’ sworn hearing testimony.[6] See DiMattina v. United States, 949 F. Supp. 2d 387, 411 (EDNY 2013) (“Without the threat of cross-examination, affidavits are viewed as self-serving and given little weight.”); United States v. Frank, 8 F. Supp. 2d 284, 291 n.2 (SDNY 1998) (crediting the testimony of witnesses over the allegations in an affidavit because the affidavit was not subject to cross-examination and the court found the testifying witnesses fully credible); United States v. Thompson, 10 Cr. 94, 2010 U.S. Dist. LEXIS 78694 (SDNY July 29, 2010) (declining to credit the assertions in an affidavit which could “neither be tested by cross-examination nor corroborated by the Court's observation of the [affiant's] demeanor”).[7]

Conclusions of Law

*6 Defendant argues that the evidence obtained from 24 Harbour Pointe on November 30, 2018 must be suppressed because Ivey's consent to search the residence was invalid. For the following reasons, the Court disagrees.

“Although warrantless searches of private property are generally presumed to be unreasonable, the law recognizes certain exceptions, for example, when the search is conducted pursuant to the consent of an authorized person.” United States v. Snype, 441 F.3d 119, 130-31 (2d Cir. 2006); accord Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). To that end, consent may be granted by either an individual whose property is to be searched, or by a third party who possesses common authority over the premises. United States v. Matlock, 415 U.S. 164, 171 (1974). A third party has the authority to grant consent to search a particular area if that person: “(1) has access to the area searched and (2) has either (a) common authority over the area, (b) a substantial interest in the area, or (c) permission to gain access to the area.” Moore v. Andreno, 505 F.3d 203, 208-09 (2d Cir. 2007). Here, Ivey had both access to 24 Harbour Pointe and common authority to consent to its search. The evidence before the Court proves that, at the time of the search, Ivey was engaged to Walker and living with him at 24 Harbour Pointe. Ivey's minor daughter lived there as well. In fact, Ivey was a fulltime resident of 24 Harbour Pointe who kept all of her belongings there, had keys to the residence, and jointly occupied the master bedroom with Walker. Thus, it is clear to the Court that Ivey had both joint access to and control over the entire residence, including the kitchen and master bedroom where the evidence or contraband was discovered during the search. See Matlock, 415 U.S. at 171 (“Common authority” means “joint access or control for most purposes.”); United States v. Jenkins, 496 F.2d 57, 72 (2d Cir. 1974) (defendant's sister, “a joint tenant for ail practical purposes” who had access to the entire first floor, could consent to a search of the property); United States v. Catalado, 433 F.2d 38, 40 (2d Cir. 1970) (“Where, however, two or more persons occupy a dwelling place jointly, the general rule is that one joint tenant can consent to a search of the dwelling place.”); United States v. Trazaska, 859 F.2d 1118, 1120 (2d Cir. 1988) (to establish third party consent to search, “[m]utual use of property, or joint access or control of property, is generally sufficient”).[8]

*7 Having concluded that Ivey had authority to consent to the search, the Court now turns to whether the consent was valid. For consent to be valid, “it must be voluntarily and freely given [and] may not be the product of duress or coercion, flagrant or subtle[.]” United States v. Sanchez, 635 F.2d 47, 58 (2d Cir. 1980). To ascertain whether consent is valid, courts examine the “totality of all the circumstances” to determine whether the consent was “a product of that individual's free and unconstrained choice, rather than a mere acquiescence in a show of authority.” United States v. Wilson, 11 F.3d 346, 351 (2d Cir. 1993); quoting Schneckloth, 412 U.S. at 227. “Relevant considerations include, but are not limited to, the age of the subject, [her] level of education and intelligence, and whether [she] was deprived of food or sleep or subjected to other physical abuse.” Sanchez, 635 F.2d at 58. When, as in this case, the government relies on consent to justify a warrantless search, it bears the burden of proving by a preponderance of the evidence that the consent was voluntary. See United States v. Isiofia, 370 F.3d 226, 230 (2d Cir. 2004). While knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.” Schneckloth, 412 U.S. at 227.

Here, the credible hearing testimony plainly demonstrates that Ivey voluntarily consented to a search of 24 Harbour Pointe. Ivey, an intelligent adult who owns a small business, voluntarily agreed to speak with officers outside her hair salon on November 30, 2018. At that time, Agent Lauer requested Ivey's consent to search her residence and Ivey verbally agreed to the search. When Ivey and the officers arrived at 24 Harbour Pointe, Ivey provided a key to access the residence. After Ivey and the officers entered 24 Harbour Pointe, Ivey was shown a consent to search form, which she signed without hesitation or objection. Ivey then assisted in the search by directing the officers to her and Walker's shared bedroom and showing the officers where Walker stored items in the residence. At no point during the search did Ivey withdraw her consent. Moreover, at the conclusion of the search, ivy agreed to be interviewed by the officers and allowed them to look through her cellular phone. Both Lauer and Gallagher credibly testified that Ivey was cooperative during the search, and that her demeanor was friendly and accommodating. In fact, there is no credible evidence in the record to suggest that Ivey was upset, crying or in distress at any point either during her initial conversation with Lauer at the hair salon or during the search of 24 Harbour Pointe. The video of Ivey's interview immediately following the search further corroborates the officers’ testimony that Ivey was not upset or in distress but instead behaved in a calm and cooperative manner at all relevant times. See United States v. Williams, 181 F. Supp. 2d 267, 284-85 (SDNY 2001) (consent to search car and apartment voluntary where the defendant assisted with the search, and was calm and cordial when he consented to the search); United States v. Fernandez-Jimenez, 03 Cr. 1493, 2004 U.S. Dist. LEXIS 13351 (SDNY July 16, 2004) (defendant's “cooperative”, “extremely cordial”, “friendly”, and “helpful” behavior, as well as the calm and non-threatening behavior of the officers, were evidence that the consent to search was voluntary).

Furthermore, there “is no evidence...of coercion or other circumstances that would render the consent invalid.” United States v. Candella, 469 F.2d 173, 175. The credible testimony shows that Ivey was never yelled at, placed in handcuffs, or otherwise touched by the officers. She was not physically or verbally threatened. Other than during a brief protective sweep of the residence after consent to search had already been given, the officers did not draw their weapons or engage in any other show of force. See United States v. DeBenedictis, 90 Cr. 882, 1991 U.S. Dist. LEXIS 6091 (May 7, 1991) (consent to search voluntary based on totality of circumstances where agents engaged in no overt acts or threats of force, no misrepresentations were made about a search warrant, agents did not use firearms or threaten incarceration, and the defendant remained calm and cooperative when agents entered the apartment and began to search based on her consent). Further, the Court rejects defendant's argument that the consent was invalid because Ivey was unaware that she could deny officers access to the apartment. Lauer credibly testified that he told Ivey she was not under arrest and that she was not required to speak with the officers. The Court finds that these statements, combined with the fact that Lauer asked for Ivey's consent to search, would have made clear to Ivey that she was not required to allow the officers to search her apartment. Regardless, Lauer was not required to expressly tell Ivey that she could refuse to consent to the search, since “knowledge of the right to refuse consent is not a requirement to a finding of voluntariness”. United States v. Garcia, 56 F.3d 418, 422 (2d Cir. 1995).

*8 The Court also rejects defendant's argument that Ivey's consent was involuntary because the officers gained access to the residence based on “misleading, if not outright false information.” Specifically, defendant argues that the officers preyed on Ivey's vulnerability by telling her that they were looking for dangerous drugs in the apartment which could harm her children. The credible hearing testimony reveals that, in seeking consent to search, Agent Lauer told Ivey that Walker had been arrested on charges related to narcotics trafficking, and that the officers wanted to search 24 Harbour Pointe because they suspected that dangerous drugs were stored there. Lauer's statement to Ivey was neither false nor misleading. Walker had in fact been arrested for narcotics trafficking, and the officers indeed sought to search his residence for, among other things, illegal drugs. To be sure, the presence of illegal narcotics in a residence can be dangerous to other inhabitants. Thus, the Court does not conclude that the agents used trickery or deceit in order to elicit Ivey's consent. See United States v. Herndon, 3:08-CR-78, 2008 U.S. Dist. LEXIS 131301 (D. Conn. Oct. 3, 2008) (no Fourth Amendment violation found where, in seeking consent to search, agents did not use trickery or deceit as to who they were or the physical object of their investigation).[9]

Moreover, even if the officers were more concerned with obtaining evidence against Walker than the safety of Ivey or her children, the Court does not find that Lauer's statement emphasizing the potentially dangerous nature of the drugs rose to the level of “trickery or deceit” that would negate consent, especially considering the totality of the circumstances present here. In fact, “the use of trickery or deception does not by itself necessarily violate a defendant's Fourth Amendment rights.” United States v. Pollaro, 733 F. Supp. 2d 364, 368 (EDNY 2010). Instead, it is a factor for courts to consider when determining from the totality of circumstances whether “a defendant's will Was overborne in a particular case.” Schneckloth, 412 U.S. at 226. As described in detail above, Ivey's actions, characteristics and demeanor on November 30, 2018 ail demonstrate that her consent was knowing and voluntary. Prior to giving consent, Ivey was accurately informed that the officers believed Walker to be a drug dealer. She was also accurately informed that the officers wanted to search the apartment for illegal narcotics. Thus, even if Ivey consented to the search because officers focused primarily upon the potentially dangerous nature of the narcotics and she was, understandably, concerned for the safety of herself and her children, her consent remains knowing and voluntary. See United States v. Colon-Gentile, 12-CR-777, 2014 U.S. Dist. LEXIS 71222 (EDNY May 23, 2014) (finding voluntary consent where law enforcement selectively revealed some, but not all, of their investigative objectives to the suspect).

Lastly, the Court rejects defendant's argument that Ivey's consent was invalid because the officers conducted a protective sweep of the residence before obtaining a written consent to search from Ivey. Agent Lauer's credible hearing testimony proves that Ivey gave verbal consent to the search 24 Harbour Pointe while sitting in Lauer's police vehicle outside of her hair salon, before she and the officers traveled to the residence. Upon arriving at 24 Harbour Pointe, Ivey took out a key and voluntarily provided officers access to the apartment. Thus, at the time the officers initially entered 24 Harbour Pointe and conducted their protective sweep, they had already obtained Ivey's consent to search the residence. The written consent to search form, signed by Ivey after she entered the apartment with the officers, served to memorialize the verbal consent she had previously provided. Having already obtained verbal consent to search the premises, the officers were not required to obtain written consent before entering the apartment and conducting an initial sweep. See United States v. Grant, 375 Fed. Appx. 79 (2d Cir. 1981) (defendant's oral consent was sufficient for officers to conduct the search). In fact, the entire search of 24 Harbour Pointe would have been permitted based on Ivey's verbal consent alone. United States v. Zadiriyev, 08-CR-1327, 2009 WL 1033365 (SDNY Apr. 17, 2009) (where defendant gave verbal consent to a search of his apartment but refused to sign a written consent form, verbal consent was found to be sufficient and voluntary).

*9 In sum, the totality of the circumstances here demonstrate that Ivey did not merely acquiesce to a show of authority but rather voluntarily consented to a search of 24 Harbour Pointe. Thus, the Court finds that the search did not violate the Fourth Amendment and recommends that defendant's motion to suppress evidence be denied.

Count 2 of the Indictment charges defendant with participation in a narcotics conspiracy beginning in or before 2012 and continuing until in or about November 2018. (Dkt. No. 84) Count 2 specifically alleges that defendant and others conspired to distribute one kilogram or more of a mixture and substance containing heroin, and that the death of M.O., a person known to the grand jury, resulted from the use of this substance on March 23, 2013) (the “death enhancement”). (Id.) Defendant moves to dismiss the death enhancement from Count 2 based upon the statute of limitations and pre-indictment delay. For the reasons that follow, the Court concludes that the motion to dismiss the death enhancement should be denied.

Statute of Limitations

With respect to all non-capital offenses, an indictment or information must be filed within five years after the offense has been committed. See 18 U.S.C. § 3282. Typically, the statute of limitations begins to run on the date the offense is completed. See Toussie v. United States, 397 U.S. 112 (1970). Here, the statute of limitations for the conspiracy charge set forth in Count 2 began to run in November 2018, the date the conspiracy is alleged to have ended. Because the overdose death of M.O. on March 23, 2013 occurred within the time frame of the alleged conspiracy, the death enhancement does not violate the statute of limitations. See United States v. Calvente, 12 Cr. 732, 2013 U.S. Dist. LEXIS 112620 (SDNY July 26, 2013) (a narcotics conspiracy prosecution is timely if the government obtains an indictment charging the offense within five years after it was committed); United States v. Grammatikos, 633 F.2d 1013, 1023 (2d Cir. 1980) (A conspiracy is a continuing offense and does not end until “its objectives have either been accomplished or abandoned.”).

Despite the allegations in the Indictment, defendant contends that the death enhancement must be dismissed from Count 2 because the Government has offered no evidentiary proof that the conspiracy existed prior to 2015, or that it was ongoing on March 23, 2013, the date of M.O.’s death. Here, the grand jury concluded that there was sufficient evidence to charge defendant with a narcotics conspiracy that lasted from in or before 2012 through November of 2018. “[W]here a grand jury has determined that there is probable cause to believe that a fact constituting an element of a crime has occurred, and where the fact is alleged in an indictment, a defendant may not challenge this factual assertion short of a trial on the merits.” United States v. Bicoastal Corp., 819 F. Supp. 156, 158 (NDNY 1993). To that end, it is not the province of the Court to either question the grand jury's finding as to the time period of the conspiracy or require the Government to lay bare their proof for purposes of the instant motion. Instead, it is the Government's burden, at trial, to prove to the jury that there was a narcotics conspiracy involving defendant and that it was in existence for the time period alleged in the Indictment, including at the time of M.O.’s death. Moreover, defendant is permitted, at trial, to raise a statute of limitations defense based upon the evidence submitted by the Government during its case. See United States v. Smith, 17-CR-166, 2018 U.S. Dist. LEXIS 219207 (WDNY Sept. 10, 2018) (For purposes of pretrial motions, the factual allegations in the indictment are considered correct and allegations that the conspiracy continued into a time not barred by the statute of limitations are questions to be answered in a trial on the merits.); United States v. Levine, 249 F. Supp. 3d 732, 737 (SDNY 2017) (where an indictment sufficiently alleged a scheme to defraud within the relevant limitations period, defendant's motion to dismiss was denied without prejudice to re-raise the statute of limitations issue at trial).

*10 For these reasons, defendant's motion to dismiss the death enhancement from Count 2 of the Indictment should be denied without prejudice to defendant's ability to raise this defense at the time of trial.

Pre-Indictment Delay

Defendant argues that even if the death enhancement is timely for statute of limitations purposes, it should be dismissed based upon the Government's pre-indictment delay. He notes that M.O.’s death occurred on March 23, 2013, but that the death enhancement was not charged until the superseding indictment was filed on November 13, 2019. Defendant submits that he was never contacted or questioned by any law enforcement agency regarding the circumstances of M.O.’s death, despite the fact that he was arrested a number of times between when M.O. died and when the Government superseded the indictment. (Dkt. No. 119, Exh. A, ¶¶4-5) Defendant further argues that the delay resulted in a tactical advantage to the Government, since over seven years have now passed and defendant is unable to conduct his own investigation into the circumstances of M.O.’s death.

A prosecutor is “justified in not seeking the indictment until...convinced that there [will] be sufficient evidence to prove guilt beyond a reasonable doubt.” United States v. Rubin, 609 F.2d 51, 66 (2d Cir. 1979). Moreover, “to establish denial of due process based on excessive pre-indictment delay [a defendant] bears the heavy burden...of showing not only that he was prejudiced by the delay but that it was so unfair as to violate fundamental concepts of fair play and decency, such as would occur if the prosecutor deliberately used the delay to achieve a substantial tactical advantage.” United States v. Scarpa, 913 F.2d 993, 1014 (2d Cir. 1990) (internal citations and quotations omitted). Prejudice in this context has typically meant the sort of deprivation that impairs a defendant's right to a fair trial. United States v. Elsbery, 602 F.2d 1054, 1059 (2d Cir. 1979). See also United States v. Cornielle, 171 F.3d 748, 752 (2d Cir. 1999) (dismissal based on pre-indictment delay requires both a showing of actual prejudice and that the “delay was an intentional device to gain a tactical advantage over the accused.”).

No such showing has been made here. First, defendant has offered no basis to demonstrate, or even suggest, that any delay by the Government was purposeful in order to gain a tactical advantage. In contrast, the Government has offered specific and convincing reasons as to why it did not supersede the indictment to include the death enhancement until November of 2019. The Government submits that it was not until after the murder of Ryan Thurnherr on October 16, 2018 that it was able to “piece together a chain of events dating back to 2012”. These events included an ongoing narcotics conspiracy that encompassed the overdose death of M.O., the murder of Thurnherr, and the murder of Jordan Richardson on April 3, 2018. The delay also appears to be caused, in part, by the fact that the initial autopsy report in 2013 ruled Thurnherr's death to be natural. A second autopsy in 2019 then ruled M.O.’s death to be an overdose.[10] The Government also notes that when defendant was arrested on the initial indictment on November 30, 2018, he asked agents if he was being arrested for “bodies” or “dose deaths”. These comments also apparently furthered the investigation into defendant's involvement in overdose deaths or acts of violence. Thus, the Government has sufficiently demonstrated that the delay was caused by its extensive and lengthy investigation into the scope of the conspiracy and defendant's specific involvement, and not by any deliberate attempt to gain an advantage in prosecuting this matter.

*11 Second, defendant has failed to show that he was prejudiced by the delay so as to compromise his right to a fair trial. Contrary to defendant's assertion that he has been unable to investigative the charges related to M.O.’s death, it appears that defendant has been provided with a great deal of discovery as to this allegation. The Government represents that defendant has been given police incident reports, scene photographs, phone calls from M.O.’s cell phone, toll records from the defendant's cell phone, the toxicology report and both autopsy reports. During oral argument, defendant argued that the Government's delay in superseding the indictment to include the death enhancement resulted in his inability to obtain video footage of M.O. in the parking lot of a Day's Inn hotel on March 22, 2013. Specifically, it is the Government's theory that defendant sold M.O. heroin the night of March 22, 2013, in a Day's Inn parking lot, and that M.O. used the heroin that evening, causing his death in the hotel room. Defendant contends that video surveillance footage from the parking lot on the night of March 22, 2013 may have provided exculpatory evidence. In a letter to the Court and defense counsel dated December 8, 2020, the Government submits that neither the Government, the DEA nor the Town of Tonawanda Police Department are in possession of video surveillance footage from the Day's Inn parking lot on March 22 or March 23, 2013. (Dkt. No. 153) Further, the Government and the DEA were never in possession of this evidence during the course of their investigation. (Id.) The Government also describes, in detail, how it is unlikely that video surveillance recordings were obtained by the Town of Tonawanda police during its investigation of M.O.’s death, since there is no video footage in the police file or logged into the evidence recording system. (Id.) Based upon the Government's representations, the Court finds that the video footage referenced by defendant does not presently exist. Further, even if video footage did exist at some time, there is no reason to believe that, had the Government indicted defendant for the death of M.O. sooner, defendant would have been able to obtain it. Thus, no actual prejudice has been shown.

For these reasons, defendant's motion to dismiss the death enhancement from Count 2 of the Indictment on the basis of pre-indictment delay should be denied.

Defendant moves for dismissal of Count 8 of the Indictment, which charges him with using and maintaining a drug-involved premises at 410 Northland Avenue, Buffalo, New York, from late 2015 through on or about January 19, 2016, in violation of Section 856(a)(1) of Title 21 of the United States Code. (Dkt. No. 8) Defendant claims that because he had no interest in this property during the relevant time period, insufficient evidence was presented to the grand jury to support the charge. In furtherance of this argument, defendant submits an affidavit stating that he conveyed 410 Northland to his sister on November 16, 2015. (Dkt. No. 119, Exh. A, ¶¶9-11) Defendant claims that since November 16, 2015, he has not owned, resided at or visited the property nor has he possessed keys to the residence or stored his belongings there. (Id.)

The Second Circuit has instructed that a technically sufficient indictment “is not subject to dismissal on the basis of factual questions, the resolution of which must await trial.” United States v. Alfonso, 143 F.3d 772, 776-77 (2d Cir. 1998) (reversing dismissal of the indictment where the district court “looked beyond the face of the indictment and drew inferences as to the proof that would be introduced by the government at trial” to satisfy the elements of the charge.) Thus, dismissal of an indictment based on insufficient evidence is appropriate only in “extraordinarily narrow” circumstances when the government offers “what can fairly be described as a full proffer of the evidence it intends to present at trial.” United States v. Singletary, 18-CR-153, 2019 U.S. Dist. LEXIS 28601 (WDNY Feb. 22, 2019); accord United States v. Sampson, 898 F.3d 270, 282 (2d Cir. 2018). Here, the Government has not made a full proffer of the evidence it intends to introduce at trial to prove that defendant used or maintained 410 Northland for the purpose of manufacturing, distributing and using heroin. Therefore, defendant's motion to dismiss Count 8 of the Indictment should be denied on this basis alone. See United States v. Urso, 369 F. Supp. 2d 254, 271 (EDNY 2005) (motion to dismiss racketeering charge on the basis that the government failed to establish a pattern of racketeering activities denied because defendant's claims would “require [the] court to assess the sufficiency of the government's evidence.”).

Moreover, the Government has proffered some evidence suggesting that defendant was connected to 410 Northland, and that he used the premises in further of narcotics trafficking.[11] The Government submits that it has cell phone evidence, controlled buys, confidential source information and witness statements linking defendant, Jordan Richardson and Clayton Williams to a drug trafficking operation in existence from 2015 through mid-2016. A search warrant was executed on January 19, 2016 at 410 Northland. Williams, who was pulled over while leaving the residence that day, was found to be in possession of heroin. Further, the police recovered additional heroin from a jacket in the bedroom, which contained Richardson's DNA. There was cutting agent on the kitchen counter and drug packaging papers found in the home, as well as personal papers addressed to Donte Walker and Jordan Richardson. Moreover, the search warrant application states that a confidential informant observed Walker at 410 Northland, along with heroin and packaging, and that the CI observed heroin at the residence on January 1 and 10, 2016. After the search began, Walker was stopped by police in a car with Richardson and found to possess $577 on his person. It is certainly premature to decide whether this evidence, combined with the additional proof the Government intends to offer at trial, is sufficient to convict defendant of Count 8. Instead, the issue is to be determined by either the jury, or by the District Court pursuant to a Rule 29 motion for a judgment of acquittal at the close of the Government's case.

*12 For these reasons, the Court recommends denial of defendant's motion to dismiss Count 8 of the Indictment.

Rule 16 Discovery

Defendant moves for discovery and inspection pursuant to Federal Rule of Criminal Procedure 16. (Dkt. No. 80, pgs. 12-14) Defendant also seeks expert disclosures pursuant to Rule 16(a)(1)(e) and Federal Rules of Evidence 702, 703 and 705. (Id.)

Rule 16(a) requires the Government to disclose certain evidence and information upon request of a defendant. While Rule 16 was intended to provide for liberal discovery, a defendant is not entitled to discovery of “the entirety of the government's case against him.” United States v. Percevault, 490 F.2d 126, 130 (2d Cir. 1974). Rule 16 provides that a defendant is entitled to the following: (1) a defendant's written, recorded or oral statements in the possession of the government; (2) the defendant's prior record; (3) documents, objects, books, papers, photographs, etc. that will be used during the government's case-in-chief; (4) reports of examinations or tests; (5) and information about expert witnesses in accordance with Federal Rules of Evidence 702, 703 and 705. See Fed. R. Crim. P. 16(a)(1). Rule 16 specifically exempts from disclosure “reports, memorandum, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case.” See Fed. R. Crim. P. 16(a)(2).

The Government submits that it has complied with its disclosure requirements pursuant to Rule 16(c). (Dkt. No. 82, pg. 22-23) The Government indicates that it has provided numerous laboratory reports that identify the results of biological or chemical testing and that it will promptly disclose, to defendant, any other evidence relating to scientific examinations and expert qualifications of its witnesses once the Government receives them and in accordance with the District Court's pre-trial order. The Government further submits that it will make physical evidence available for inspection upon defendant's request, at a time convenient to the parties. (Id.) Lastly, the Government provides notice that it intends to use all items of evidence provided or disclosed to defendant in accordance with Rule 12(b)(4)(A) of the Federal Rules of Criminal Procedure. (Id. at 23)

Based upon the representations made by the Government in their written responses, defendant's request for discovery pursuant to Rule 16 is denied as moot.[12] The Government is reminded that its disclosure obligations continue up through and during trial. See Fed. R. Crim. P. 16(c). The Government is also reminded of its continuing obligations pursuant to Rule 12(b)(4)(B). Finally, the Government is expected to comply with all requirements in Rule 16, Federal Rules of Evidence 702, 703, and 705, and Judge Arcara's pretrial order as they apply to expert testimony.

Request for a Bill of Particulars

*13 Defendant requests a bill of particulars pursuant to Rule 7(f) of the Federal Rules of Criminal Procedure. (Dkt. No. 80, pgs. 1-3) He seeks particularization as to the specific acts of the conspiracy which are attributable to him; details as to how the Government calculated the specific amount of heroin charged in the indictment; the exact weight of all controlled substances he is charged with conspiring to distribute; the specific times, dates and locations of the alleged possession and distribution of the controlled substances; the names of all individuals from whom and to whom the Government alleges he distributed heroin and fentanyl; the dates on which the conspiracy ended as well as the dates each defendant or co-conspirator joined and left the conspiracy; statements the Government will reply on to show agreement between conspirators; the amount of money allegedly received by him and his co-conspirators; and the individuals he is alleged to have supervised or organized in the CCE. (Id.)

Federal Rule of Criminal Procedure 7(f) “permits a defendant to seek a bill of particulars in order to identify with sufficient particularity the nature of the charge pending against him, thereby enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense.” United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987). However, “[t]he Government may not be compelled to provide a bill of particulars disclosing the manner in which it will attempt to prove the charges, the precise manner in which the defendants committed the crimes charged, or a preview of the Government's evidence or legal theories.” United States v. Rittweger, 259 F. Supp. 2d 275, 291 (SDNY 2003). In determining whether a bill of particulars is warranted, a court is to consider “the complexity of the offense, the clarity of the indictment, and the degree of discovery otherwise afforded to defendants.” United States v. Shoher, 555 F. Supp. 346, 349 (SDNY 1983). It is well-settled that acquisition of evidentiary detail is not the purpose of a bill of particulars. United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990). Further, a defendant is not generally entitled to receive details of the government's conspiracy allegations through a bill of particulars. United States v. Wilson, 493 F. Supp. 2d 364, 372 (EDNY 2006).

The charges here are neither complex nor difficult to understand. They involve a narcotics conspiracy, possession with intent to distribute various controlled substances on specific dates, maintaining drug involved premises at two specific locations, and the murder of an individual who was believed to be providing information to law enforcement. The Indictment specifies the drugs and premises involved. Defendant has been provided with Rule 16 discovery. In addition, the Government has disclosed much of its evidence in filings related to defendant's bail appeal. In its response to defendant's motions, the Government notes that defendant has been provided extensive information regarding the alleged CCE through the Indictment, public filings, plea agreements of other defendants, detention proffers, and voluminous discovery. In addition, the Government has identified at least five people that defendant is alleged to have supervised or managed in the course of the CCE, including Clayton Williams, Jordan Richardson, Kevin Hinca, Ryan Thurnherr, and the Cooperating source associated with Counts 9, 10 and 11. (Dkt. No. 120, pgs. 3-4)

Considering the allegations in the Indictment in conjunction with the materials produced in discovery and the additional evidence disclosed to defendant, the Court finds that defendant has been provided with sufficient information to inform him of the charges against him, prepare a defense, avoid surprise at trial, and ensure against double jeopardy. The additional details sought by defendant amount to an attempt to use a bill of particulars as a discovery device. See e.g., United States v. Biaggi, 675 F. Supp. 790, 809 (SDNY 1987) (defendants request for “each alleged date, time, person present, place, nature of conversation [and] amount” is an “impermissible attempt to compel the Government to provide evidentiary details of its case.”); Torres, 901 F.2d at 234 (finding that the district court acted well within its discretion denying defendant's request for a bill of particulars specifying when he joined the conspiracy, the identity of unindicted co-conspirators, and the precise dates and locations he was alleged to have transported heroin); United States v. Montalvo, 11-CR-00366, 2014 WL 3894377 *11 (WDNY April 16, 2014) (the exact quantity of controlled substances is not the proper subject of a bill of particulars). For these reasons, defendant's request for a bill of particulars is denied.

Jencks Material

*14 Defendant requests disclosure of witness statements thirty days prior to the start of trial in order to “allow for meaningful preparation of a defense.” (Dkt. No. 80, pgs. 10-11)

Section 3500 of Title 18 of the United States Code requires that the government, on motion of defendant, disclose a government witness's prior statements that are in the government's possession and relate to the subject matter of the witness's direct testimony (“3500 material”). See also Jencks v. United States, 353 U.S. 657 (1957); Fed. R. Crim. P. 26.2 (procedure for producing a witness statement). A witness statement is defined as; (1) a written statement by a witness that is signed or otherwise adopted or approved by the witness; (2) a substantially verbatim recording or transcription of a witness's oral statement; or (3) any statement however taken or recorded made by the witness to the grand jury. 18 U.S.C. 3500(e). Statements are not required to be produced, by law, until after the witness has testified on direct examination, and the Court cannot mandate that they be produced sooner. See 18 U.S.C. § 3500(a); Fed. R. Crim. P 26.2(a).

The Government indicates that it will comply with its typical practice and disclose witness statements prior to trial, in accordance with the District Court's pretrial order. (Dkt. No. 82, pgs. 18-19) In light of these representations, defendant's request for disclosure of witness statements is denied as moot.[13]

Brady/Giglio Material

*15 Defendant moves for the disclosure of any favorable, exculpatory or impeachment materials pursuant to Brady, Giglio and their progeny. (Dkt. No. 80, pgs. 10-11)

The Government has an obligation to disclose exculpatory material, or material favorable to an accused as to either guilt or punishment, even when no affirmative request has been made. Brady v. Maryland, 373 U.S. 83, 87 (1963). Material “favorable to an accused” includes not only evidence that affirmatively tends to exculpate the defendant, but also information that impeaches the credibility of Government witnesses. See Giglio v. United States, 405 U.S. 150, 154-55 (1972). The test for materiality is whether “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985). Evidence may be material for Brady purposes even if it is not admissible, as long as it could lead to the discovery of admissible evidence. United States v. Gill, 297 F.3d 93, 104 (2d Cir. 2002). “[A]s a general rule, Brady and its progeny do not require immediate disclosure of all exculpatory and impeachment material upon request by a defendant.” United States v. Coppa, 267 F.3d 132, 146 (2d Cir. 2001). “[A]s long as a defendant possesses Brady evidence in time for its effective use, the government has not deprived the defendant of due process of law simply because it did not produce the evidence sooner.” Id. at 144.

Here, the Government acknowledges its affirmative continuing duty to provide defendant with exculpatory evidence as well as evidence that the defense might use to impeach Government witnesses at trial. (Dkt. No. 82, pgs. 16-19) The Government also responds that it will disclose all impeachment material prior to trial in accordance with the schedule set by the District Court and no later than when the Government produces and delivers Jencks Act material. (Id.) Given the Government's representations and for the reasons just stated, defendant's motion to compel the production of Brady/Giglio material is denied as moot. The Government is reminded of its continuing Brady obligations and, consistent with Coppa, the Government shall timely disclose any Brady and Giglio material to defendant. See United States v. Padovani, 14-CR-00224, 2016 WL 5402696, at *4 (W.D.N.Y. Sept. 28, 2016).

Disclosure and Exclusion of Non-Testifying Co-Conspirator Statements

Defendant requests disclosure of any co-conspirator statements which will be relied on at trial by the Government to demonstrate the existence of a conspiracy pursuant to Federal Rule of Evidence 801(d)(2)(E). (Dkt. No. 80, pg. 12) Defendant also moves for an order barring the introduction at trial of any and all post-arrest statements by non-testifying co-conspirators pursuant to Bruton v. United States, 391 U.S. 123 (1968) and the Sixth Amendment of the United States Constitution. (Dkt. No. 80, pg. 9)

Rule 16 does not provide for the disclosure of co-conspirator statements. To the extent that the statements in question constitute 3500, Giglio or Brady material, those statements will be disclosed in accordance with the procedures discussed above. Otherwise, Federal Rule of Evidence 801 (d)(2)(E) does not contain a requirement as to pretrial notice of statements. Further, the admissibility of any co-conspirator statements, as well as any Bruton implications and requests for severance, are best addressed by the District Judge at the time of trial. See United States v. Anguiera, 11-CR-116; 2012 U.S. Dist. LEXIS 51862 (WDNY April 12, 2012) (“[T]he relief sought for excluding non-testifying co-conspirator statements...[i]s better considered by the District Judge prior to trial and deferred for that consideration.”); United States v. Mireles, 08 CR 34, 2009 U.S. Dist. LEXIS 109176 (WDNY Nov. 23, 2009) (Severance motions “are more appropriately heard and determined by the trial court, which is in the best position to rule on the issues presented.”)

*16 Therefore, defendant's request for disclosure of co-conspirator statements as well as his request to exclude all post-arrest statements by non-testifying co-conspirators are denied without prejudice to renew the requests before Judge Arcara.

Rule 404(b)

Defendant moves for disclosure of any evidence of prior crimes or bad acts the Government intends to introduce at trial pursuant to Federal Rule of Evidence 404(b). (Dkt. No. 80, 10-11) The Government states that it has provided defendant with notice of his prior arrests and that it will disclose any further evidence in its possession that may fall under Rule 404(b) in accordance with District Court's pretrial order. (Dkt. No. 80, pgs. 15-16)

The Government is required to provide “reasonable notice in advance of trial” of the genera! nature of prior uncharged crimes or bad acts it intends to introduce against a defendant. See Fed. R. Evid. 404(b). Based upon the Government's representation that it will disclose Rule 404(b) evidence consistent with the District Court's pretrial order requirements, defendant's motion is denied as moot. The issue of admissibility of evidence pursuant to Federal Rules of Evidence 404(b) is left to the determination of Judge Arcara at the time of trial.

Release of Grand Jury Minutes

Defendant requests transcripts of any testimony relating to the instant case given by any uncharged defendant or co-conspirator to the grand jury. (Dkt. No. 80, pg. 12)

The Government has an obligation to disclose any grand jury testimony that constitutes 3500, Brady or Giglio material. Notwithstanding this material, a defendant is not entitled to inspect grand jury minutes and evidence without producing “concrete allegations of government misconduct.” United States v. Leung, 40 F.3d 577, 582 (2d Cir. 1994). Defendant has not made any such allegations here and therefore is not entitled to view grand jury material. See United States v. Ulbricht, 858 F.3d 71, 106-107 (2d Cir. 2017) (to be entitled to disclosure of grand jury proceedings, a defendant must show a particularized need that outweighs the strong government and public policy interests in the secrecy of grand jury proceedings); United States v. Ayeki, 289 F. Supp. 2d 183, 186 (D. Conn. 2003) (“grand jury proceedings carry a presumption of regularity, and a review of grand jury minutes is rarely permitted without specific factual allegations of government misconduct.”) Therefore, to the extent that defendant is requesting grand jury material that is not also 3500, Brady or Giglio material, the request is denied.

Leave to Make Further Motions

Defendant also moves to reserve the right to make further motions as necessary. (Dkt. No. 118, pg. 18) To the extent that defendant intends to bring motions based upon new information or evidence that has not yet been disclosed, his request for leave to file additional motions is granted. To the extent that defendant intends to bring motions concerning issues that could have been raised prior to the previous motion deadline, defendant's request is denied without prejudice to bring the motion upon a showing of good cause for the untimely filing.

Reciprocal Discovery

The Government moves for reciprocal discovery pursuant to Rule 16(b) of the Federal Rules of Criminal Procedure including the opportunity to inspect, copy or photograph books, papers, documents, photographs, tangible objects or copies or portions thereof which are in the possession, custody or control of defendant and which defendant intends to introduce as evidence at trial, the results or reports of any physical or mental examinations or scientific tests or experiments made in connection with the case which defendant intends to introduce at trial or which were prepared by a witness whom defendant intends to call at trial when the results or reports relate to that witness's testimony. (Dkt. No. 82, pgs. 22-23) The Government also demands, in accordance with the District Court's pretrial order, a summary of any testimony that defendant intends to use under Rule 702, 703 or 705 of the Federal Rules of Evidence at trial. (Id.) The Government's motion for reciprocal discovery is granted, and defendant is reminded that his disclosure obligations continue up through and during trial. See Fed. R. Crim. P. 16(c).

*17 For the foregoing reasons, it is recommended that defendant Donte Walker's motions to suppress evidence and dismiss certain counts of the indictment be denied. (Dkt. Nos. 80, 118, 119) It is ordered that defendant's omnibus discovery demands are decided in the manner detailed above, and that the Government's request of reciprocal discovery (Dkt. No. 82) is granted.

Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ordered that this Report, Recommendation and Order be filed with the Clerk of Court.

Unless otherwise ordered by Judge Arcara, any objections to the recommendation portion of this Report, Recommendation and Order must be filed with the Clerk of Court within fourteen days of service of this Report and Recommendation in accordance with the above statute, Rules 59(b), 45(a), and 45(c) of the Federal Rules of Criminal Procedure, and Local Rule of Criminal Procedure 59. Any requests for an extension of this deadline must be made to Judge Arcara.

Failure to file objections, or to request an extension of time to file objections, within fourteen days of service of this Report, Recommendation and Order WAIVES THE RIGHT TO APPEAL THE DISTRICT COURT'S ORDER. See Small v. Sec'y of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989).

The District Court will ordinarily refuse to consider de novo arguments, case law and/or evidentiary material which could have been, but were not, presented to the Magistrate Judge in the first instance. Pursuant to Local Rule of Criminal Procedure 59(c)(2), written objections “shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for each objection, and shall be supported by legal authority.” Failure to comply with these provisions may result in the District Court's refusal to consider the objection.

SO ORDERED.

Co-defendants Clayton Williams and Kevin Hinca were also charged in this case. Williams entered into a plea agreement with the Government on July 3, 2019. Hinca entered a plea agreement with the Government on December 12, 2019.

Defendant first filed pre-trial motions on October 16, 2019, in response to the original indictment issued in this case. (Dkt. No. 80) Defendant supplemented those motions on April 23, 2020, after the filing of the superseding indictment. (Dkt. No. 118 and 119) The instant Report and Recommendation addresses all outstanding motions filed by defendant, including those filed in response to the initial indictment.

Lauer initially testified that Ivey unlocked the front door. (Dkt. No. 136, pg. 15) Lauer testified later, on cross-examination, that he does not recall who actually placed the key in the front door. (Id. at 39) However, it is clear from the testimony that, regardless of who actually placed the key in the lock, Ivey provided the officers with access to the residence.

The Government offered into evidence the video recording of Ivey's interview by agents on November 30, 2018 to demonstrate Ivey's demeanor and attitude during the interview as well as her continued cooperation with the officers following the search. (Dkt. No. 136, pg. 26; Exh. 3) Defense counsel objected, on the grounds that the video was hearsay and that it encompassed matters other than Ivey's consent to the search of 24 Harbour Pointe. (Id. at 26-27) The Court overruled defendant's objection and allowed the video to be entered into evidence, but only for the limited purpose of showing Ivey's demeanor during the interview and not for the truth of any of the statements made by Ivey during the interview. (Id. at 27-28)

Prior to the evidentiary hearing, defense counsel informed both the Court and the Government that defendant was considering calling Jaila Ivey as a witness but was also weighing the possibility that Ivey could face criminal liability should she testify in a manner that was inconsistent with her grand jury testimony or other statements she previously made to the Government regarding the events of November 30, 2018. Likewise, the Government indicated that should Ivey provide hearing testimony that was inconsistent with prior statements she made in this matter while under oath, they would likely seek to prosecute her. There was also concern that, depending on her testimony, Ivey could incriminate herself in light of the evidence or contraband discovered at the residence. Ivey appeared at the evidentiary hearing with counsel. Ivey's counsel indicated that should Ivey be called to testify, she intended to invoke her Fifth Amendment right to remain silent. (Dkt. No. 136 pgs. 3-4) Defense counsel then stated that since Ivey intended to invoke her Fifth Amendment rights, Ivey would not be called as a witness. (Id. at 5)

Ivey's affidavit also states that she has been residing at 24 Harbour Pointe with Walker since 2018; she keeps all of her personal belongings there; and she sleeps there seven nights a week. (Dkt. No. 119, Exh. C, ¶5) Ivey further states that she has been dating Walker since 2014; they have been engaged since 2016, and she and Walker jointly occupy the master bedroom of the residence. (Id. at ¶3, ¶10) The Court credits these statements because they are consistent with Lauer's testimony that, according to the officers’ investigation, Walker and Ivey were living together at 24 Harbour Pointe at the time of the search.

In his post-hearing brief, defendant concedes that because Ivey did not testify and was not subject to cross-examination, her affidavit carries less weight than live testimony. (Dkt. No. 142, pg. 2)

In his initial suppression motion, defendant argued that even if Ivey had authority to consent to a search of the residence, she did not have actual or apparent authority to consent to a search of his closet. During post-hearing oral argument, defense counsel conceded that the testimony from the evidentiary hearing did not lend strong support to this contention. The Court agrees. Officer Gallagher credibly testified that he found a white powdery substance and cocaine test kits in a master bedroom closet which was used by defendant. There were no locks on the closet door or obstructions in front of it. Moreover, the white powdery substance was discovered “out in the open” on the floor in the closet and the test kits were found in an envelope on a closet shelf. The items were not inside any separate compartments or locked containers within the closet. Further, all of the evidence before the Court demonstrates that the closet was located in Ivey's bedroom, which she shared with defendant. Thus, even if the closet was maintained primarily by defendant, there is no credible evidence to suggest that Ivey was excluded from either entering or using the closet. For these reasons, the Court finds that Ivey's authority to consent to a search of 24 Harbour Pointe included the master bedroom closet used by defendant. See United States v. Scanlon, 15-CR-142, 2017 U.S. Dist. LEXIS 200111 (WDNY Aug. 10, 2017) (upholding search of a firearm cabinet where wife could presumptively consent to the search of all property within a residence she shared with defendant, and defendant did not rebut the presumption by showing that officers knew or had reason to know that the cabinet was off-limits to her); United States v. Perez, 948 F. Supp. 1191, 1201 (SDNY 1996) (third-party consent valid where father has “obvious access to his son's unlocked bedroom and to the unlocked closets and containers therein.”); United States v. Wilburn, 473 F.3d 742, 745 (7th Cir. 2007) (girlfriend “had actual (and at the very least apparent) authority to consent to the search” of an unlocked, unmarked though zippered shut, duffel bag belonging to defendant in a shared closet space.).

The Court also rejects defendant's argument that Lauer's statement about the presence of potentially dangerous drugs in the apartment was a misrepresentation because Agent Lauer testified, on cross-examination, that he did not know for a fact that there were dangerous drugs there. At the time Lauer sought consent to search, he knew that Walker, who had just been arrested for drug distribution, resided at 24 Harbour Pointe. Thus, Lauer had a good faith basis to suspect that narcotics could be found at the residence, and his statement to that effect was not an affirmative misrepresentation. See United States v. Munoz, 987 Fed. Supp. 2d 438, 447 (SDNY 2013) (“where police have an honest basis for their statement, it is not coercive to make it.”).

The Government notes that both the 2013 and 2019 autopsy reports were presented to the grand jury. Contrary to defendant's assertions, there is no reason to believe that the Government “took advantage of a staffing change at the Erie County Medical Office to obtain a [second] opinion on M.O.’s death” that would result in an enhancement. Instead, the record suggests that it was the Government's continuing investigation, combined with the second autopsy results, which resulted in the Government's decision to prosecute defendant for the overdose death.

While defendant emphasizes in his affidavit that he transferred ownership of the property to his sister, the Court notes that a defendant need not have an ownership interest in a property to be convicted under 21 U.S.C. § 856(a)(1). See United States v. Facen, 812 F.3d 20, 289 (2d Cir. 2016) (“§ 856(a)(1) is violated simply by using a place for the commission of the specified drug crime; proof that the defendant ‘maintained’ the premises, which is a separate way of violating the statute, is not necessary for a conviction.”)

Defendant specifically requests either the affidavit or any in camera testimony submitted to the Honorable Craig T. Hannah of Buffalo City Court in support of a search warrant application for 410 Northland on January 19, 2016. (Dkt. No. 80, pg. 12) Defendant has not filed an affidavit of standing as to 410 Northland and therefore has no basis to challenge the validity of the warrant or the search of the premises. For this reason, the Court finds that defendant is not entitled to disclosure of either the supporting affidavit or any in camera minutes.

To the extent that defendant is requesting early disclosure of informant identities, informant statements or informant impeachment materials, his request is denied. First, the Government has no general duty to disclose the identities of its witnesses before trial. United States v. Bejasa, 904 F.2d 137, 139 (2d Cir. 1990). Further, the Government has a qualified privilege to withhold information concerning the names of confidential informants that it does not intend to call as witnesses. See Rovario v. United States, 353 U.S. 53, 60-62 (1957) To that end, a defendant seeking the identity of a confidential informant must make some evidentiary showing as to why disclosure is significant to determining defendant's guilt or innocence. See United States v. Jimenez, 789 F.2d 167, 170 (2d Cir. 1986) (defendants face a “heavy burden” of establishing that disclosure is essential to the defense). Defendant here has not met his heavy burden with respect to early disclosure of informant identities. He does not offer examples of specific testimony or information these informants might provide. Instead, defendant generally states that the Government's case will be highly dependent on statements from informants and cooperating witnesses, and that their credibility is likely to be a “hotly contested issue at trial.” Defendant's explanation as to how informants would provide information material or necessary to their defense at this stage in the proceeding is speculative. If and when informants are to be called as witnesses at trial, defendant will have access to their identities as well as all relevant impeachment material, prior statements and notes of their interviews. In addition, should informants reveal exculpatory information at any time, the Government has an ongoing duty to disclosure this information in time for its effective use at trial.