U.S. v. Payne
U.S. v. Payne
2021 WL 9978612 (W.D.N.Y. 2021)
December 29, 2021
Roemer, Michael J., United States Magistrate Judge
Summary
The court found that the seizure of the defendant's cell phone was justified by the plain view doctrine, as Agent Brostko had probable cause to believe the cell phone contained evidence of the defendant's alleged crimes. The court also found that the delay in obtaining a search warrant for the ESI was reasonable, and that the defendant knowingly and voluntarily waived his Miranda rights when making statements to law enforcement agents. The court denied the defendant's motion to suppress the evidence gained from the device.
THE UNITED STATES OF AMERICA
v.
ALPHONSO PAYNE, Defendant
v.
ALPHONSO PAYNE, Defendant
1:19-CR-00170 - RJA-MJR
United States District Court, W.D. New York
Filed December 29, 2021
Roemer, Michael J., United States Magistrate Judge
REPORT, RECOMMENDATION and ORDER
*1 This case was referred by the presiding judge, the Honorable Richard J. Arcara, to this Court, pursuant to 28 U.S.C. § 636(b)(1), to handle non-dispositive discovery motions and to make a recommendation as to all dispositive motions.
Before the Court are dispositive motions brought by defendant Alphonso Payne (“defendant”) (Dkt. No. 223), as well as supplemental dispositive and non-dispositive motions brought by co-defendant Gregory Hay (Dkt. Nos. 227; 298), which defendant Payne has moved to join. For reasons that follow, it is recommended that defendant's motions to suppress and motions to dismiss be denied.
BACKGROUND
On August 21, 2019, defendant Alphonso Payne, along with co-defendant Gregory Hay, was charged by Indictment with conspiracy to distribute controlled substances, and possession with intent to distribute, and distribution of, controlled substances. (Dkt. No. 2). A Superseding Indictment was filed on April 13, 2020. (Dkt. No. 37). That instrument was replaced on August 26, 2020 by a Second Superseding Indictment. (Dkt. No. 70). The Second Superseding Indictment charges defendant Payne and six co-defendants with 26 criminal offenses, including allegations of drug trafficking, weapons possession, murder of a federal informant, conspiracy, and obstruction of justice, inter alia.
Defendant Payne is charged in the Second Superseding Indictment with the following: (1) conspiracy to possess with intent to distribute, and to distribute, cocaine, cocaine base, marijuana, and heroin beginning in early 2016 and continuing to on or about August 28, 2019, in violation of Title 21, United States Code, Section 846; (2) possession with intent to distribute, and distribution of, cocaine on or about April 23, 2019, in violation of Title 21, United States Code, Section 841(a)(1) and 841(b)(1)(c) and Title 18, United States Code, Sections 2; (3) possession with intent to distribute, and distribution of, cocaine on or about April 29, 2019, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(c) and Title 18, United States Code, Section 2; (4) possession of firearms in furtherance of drug trafficking on an unknown exact date between June 2019 and July 2019, in violation of Title 18, United States Code, Section 924(c)(1)(A)(i); (5) conspiracy to murder a federal informant, namely Joshua Jalovick, beginning in early 2019 and continuing to on or about August 20, 2019, in violation Title 18, United States Code, Section 1512(k); (6) murder of a federal informant, namely Joshua Jalovick, on or about July 1, 2019, in violation of Title 18, United States Code, Sections 1512(a)(1)(A), 1512(a)(1)(C), 1512(a)(3)(A), and 2; (7) conspiracy to retaliate against a federal informant, namely Joshua Jalovick, beginning in or about early 2019 and continuing to on or about August 20, 2019, in violation of Title 18, United States Code, Section 1513(f); (8) retaliating against a federal informant, namely Joshua Jalovick, on or about July 1, 2019, in violation of Title 18, United States Code, Sections 1513(a)(1)(B), 1513(a)(2)(A), and 2; (9) discharge of a firearm in furtherance of crimes of violence and a drug trafficking crime on or about July 1, 2019, in violation of Title 18, United States Code, Sections 924(c)(1)(A)(iii) and 2; and (10) discharge of a firearm causing death in furtherance of crimes of violence and a drug trafficking crime on or about July 1, 2019, in violation of Title 18, United States Code, Sections 924(c)(1)(A)(iii), 924(j)(1) and 2. (Dkt. No. 70).
*2 Defendants Gregory Hay and Alphonso Payne previously filed non-dispositive pretrial motions which this Court addressed by Decision and Order issued on December 29, 2020. (Dkt. No. 150). Defendants Hay and Payne subsequently moved for reconsideration of that Decision and Order (Dkt. No. 181). The motion was briefed and argued. By text order dated March 18, 2021, the Court declined to order the Government to provide further discovery. (Dkt. No. 205).
The Court set a later deadline for filing of dispositive motions by defendants Hay and Payne.[1] On May 6, 2021, defendant Payne filed the instant omnibus motion seeking dismissal of counts of the Indictment, suppression of evidence, and joinder in his co-defendants’ motions. (Dkt. No. 223). The Government filed a response to these motions. (Dkt. No. 236). Defendant filed a reply. (Dkt. No. 248). On May 17, 2021, defendant Hay made a supplemental motion to dismiss which was filed under seal and purported to be filed on behalf of both defendants Hay and Payne. (Dkt. No. 227). Payne expressly moved to join that supplemental motion (Dkt. No. 261, pg. 8), and the Court will address the motion as it pertains to him. The Government responded (Dkt. No. 230) and defendant Hay replied (Dkt. No. 252).
Oral argument on the pretrial dispositive motions of defendants Payne and Hay was held before the Court on June 16, 2021. At that time, the Court requested further briefing on the issues and the need for evidentiary hearings. Defendant Payne filed a supplemental memorandum, (Dkt. No. 261), to which the Government filed a supplemental response (Dkt. No. 265). A status conference was held on June 22, 2021, during which the Court scheduled a hearing date.
An evidentiary hearing was held on August 11, 2021. The Government called two witnesses: Adam Zeithammel, Special Agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), and Paul Brostko, Special Agent with ATF. (Dkt. No. 295). Defendant called one witness: Tammie Munn Scott (hereinafter referred to as “Ms. Munn”), the defendant's mother. (Id.). The Government and defendant filed post-hearing briefs. (Dkt. Nos. 308; 309). The Government and defendant have also filed reply briefs. (Dkt. Nos. 317; 318).
Additionally, on September 3, 2021, defendant Hay filed a supplemental motion seeking suppression of evidence and to compel disclosure of certain Fed. R. Crim. P. 16 discovery materials. (Dkt. No. 298). Defendant Payne filed a motion for joinder in Hay's motion to compel Rule 16 discovery. (Dkt. No. 303). The Government filed a responding memorandum (Dkt. No. 307) and defendant Hay filed a reply (Dkt. No. 313). The relevant portions of that motion are addressed herein. On September 7, 2021, the Government filed a notice of its intent not to seek the death penalty against defendant Hay or defendant Payne in this case. (Dkt. No. 299).
Post-hearing oral argument was held before this Court on November 10, 2021, at which time the Court considered the matter submitted.
During the hearing on August 11, 2021, the Court heard testimony from ATF Special Agent Adam Zeithammel, ATF Special Agent Paul Brostko, and Tammie Munn Scott, defendant's mother. (Dkt. No. 295). Their testimony related to events which occurred during and after defendant's arrest at his mother's residence on August 20, 2019 in Pensacola, Florida. (Id.). The evidence offered at the hearing concerned the warrantless seizure of defendant's cell phone from inside that residence, the subsequent custodial statements made by defendant, and the Government's delay in seeking a warrant to search the contents of that cell phone. (Id.).
*3 Agents Paul Brostko and Adam Zeithammel each testified about the events surrounding defendant's arrest and subsequent interrogation. Their testimony is largely consistent. The relevant discrepancies in their testimony are noted herein.
On August 6, 2019, Agent Brostko applied to this Court for a Criminal Complaint and Arrest Warrant against defendant Payne based on allegations of conspiracy to distribute, and distribution of, cocaine. (Tr. 150-53).[2] This Court authorized the Criminal Complaint and issued a warrant for defendant's arrest. (Govt's Ex. 1). At that time, defendant was also a suspect in the murder of Joshua Jalovick, an ATF informant. (Tr. 158).
Agent Brostko testified that he attempted to locate defendant in the Buffalo area. (Tr. 153). His research and surveillance identified that defendant was possibly leaving the area and may be going to Pensacola, Florida, where it was believed defendant's mother and other family members lived. (Id.). On August 12, 2019, Agent Brostko obtained from this Court a warrant to track, or “ping,” a cellular telephone number linked to defendant in order to locate and arrest him on the warrant. (Tr. 155; Govt's Ex. 2). The cellular telephone provider was not able to obtain any location data from the subject cell phone. (Tr. 156). Agent Brostko later found out that defendant's cell phone was broken and inoperable. (Tr. 168).
Agent Brostko then learned from defendant's social media accounts that defendant was near Atlanta, Georgia, possibly staying in a hotel. (Tr. 156-57). This strengthened his belief that defendant was headed to Pensacola, Florida. (Id.). On August 12, 2019, Agent Brostko contacted the ATF office in Pensacola to seek assistance in locating defendant. (Tr. 4-6; 154). Special Agent Adam Zeithammel of the Pensacola ATF office headed the local search for defendant, knowing there was an active federal arrest warrant for defendant and that he was a suspect in a homicide. (Tr. 5-6). Agent Zeithammel conducted investigative activity in that area, including surveillance at the Kings Mill Apartments, 8917 N. Davis Highway, Unit 42, Pensacola, where defendant's mother, Tammie Munn Scott, was known to reside. (Tr. 6-7).
On August 19, 2019 at approximately 1:00 p.m., Agent Zeithammel visited Ms. Munn's residence in the Kings Mill Apartments. (Tr. 7-8; 80). He knocked on the door of Unit 42 and Ms. Munn's husband, Reginald Scott, answered the door. (Tr. 8). He was present with several children. (Id.) He stated that defendant was not present. (Id.). Mr. Scott provided consent for Agent Zeithammel and another agent to come into the residence and briefly look around, which they did. (Id.). Agent Zeithammel left his phone number with Mr. Scott and asked him to contact him if he had any further information about the location of defendant. (Id.). At this point, Agent Zeithammel did not advise Mr. Scott of the arrest warrant; telling him only that he needed to speak with defendant. (Id.).
At approximately 5:00 p.m., Mr. Scott called Agent Zeithammel to tell him that defendant was going to be arriving in a Mobile, Alabama on a bus at some point that afternoon and then would be coming to Pensacola. (Tr. 9; Govt's Ex. 2). Agent Zeithammel immediately went to the Mobile bus station but was unable to locate defendant. (Tr. 9-11). He received another call from Mr. Scott advising that defendant has just arrived at the residence in Pensacola. (Id.). Agent Zeithammel informed Agent Brostko and Brotsko arranged to fly to Pensacola so that he could be present to arrest defendant and interview him, if possible. (Tr. 9-11; 157-58). A short while later, a person claiming to be defendant called Agent Zeithammel and agreed to speak with agents the next morning. (Tr. 11-12).
*4 In the late morning on August 20, 2019, Agent Brostko, Agent Zeithammel, and other local agents met in the Pensacola ATF office where they reviewed an operational plan for bringing defendant into custody on the arrest warrant. (Tr. 14-16; 159-60; Govt's Ex. 2). The agents travelled by car to the Kings Mill Apartment complex. (Id.). Agents Brostko and Zeithammel knocked on Ms. Munn's apartment door and announced themselves. (Tr. 24-25; 162-63). Ms. Munn answered the door and the agents could see defendant “peeking over from” the living room or dining area of the apartment. (Tr. 26; 29; 164-65). Agent Brostko and Zeithammel called out to defendant to get him to come to the exterior door. (Tr. 29-30; 165-66). Defendant did come to the door and he was handcuffed and taken into custody without incident. (Id.). Defendant was told there was a warrant for his arrest. (Id.).
There were approximately seven agents, in addition to Agent Brostko, present at the apartment building. (Tr. 15; 160). The agents wore ATF-marked bulletproof vests and they carried firearms. (Tr. 22; 161). All agents, except for one, carried pistols which remained holstered during the events. (Tr. 23-24; 163-64). One member of the team, Agent Carrier, had a rifle or “long gun,” which was hanging around his neck and was not pointed at defendant or the other occupants of the apartment. (Tr. 23-24; 31; 163-64).
Defendant's arrest occurred at the doorway of the apartment and defendant was then brought out further into the exterior hallway or breezeway of the building. (Tr. 166; Govt's Exs. 4A-C). While Agent Zeithammel and other agents handled defendant in the breezeway, Agent Brostko spoke with Ms. Munn, who asked questions about the process that would ensue for her son. (Tr. 31; 166). The agents did not have a warrant to search the apartment. (Tr. 90).
Initially, Agent Brostko spoke with Ms. Munn at the doorway. Agent Brostko testified that he asked Ms. Munn whether defendant had any firearms in the house. (Tr. 166-67). Ms. Munn appeared surprised and said that he better not have a gun because her grandchildren were also in the house. (Id.). Agent Brostko testified that he then asked if he could take a look around the apartment and Ms. Munn said “yes.” (Tr. 167). Agent Brostko and Ms. Munn walked through the living area to the doorway of a bedroom. (Id.). Ms. Munn pointed to a duffle bag and said something like, “here's all his stuff, he just came yesterday.” (Id.). Agent Brostko testified that he asked if he could look at it. (Id.). He then went through the bag and found no firearm. (Id.). Agent Zeithammel testified that he could not recall exactly what occurred because his focus was on defendant. (Tr. 31-32). At some point he saw Agent Brostko inside the apartment talking with Ms. Munn. (Id.). He could not hear the conversation between them, although he observed their body language, explaining, “it just appeared to be two people talking, just a cordial conversation.” (Tr. 32). Agent Zeithammel stated that although he might have been able to hear them if they were speaking loud enough, he may not have been paying attention or focused on them at that time. (Tr. 113-14).
Brostko testified that he then asked Ms. Munn, “do you know if he brought a cell phone?” (Tr. 167). She said he did have a cell phone and they walked back to the hallway and kitchen area. (Id.). Agent Brostko asked again if defendant had a cell phone and Ms. Munn produced a phone from somewhere nearby. (Tr. 168). Prior to this time, Agent Brostko did not know what defendant's phone looked like. (Id.). He knew the telephone number associated with it and that it was an Apple phone. (Id.). He testified that he could not have distinguished it from other cell phones in the residence. (Id.). When handed the phone, Agent Brostko noticed that the screen was broken. (Tr. 168-69; Govt. Ex. 14). He testified that he thought to himself, “this is [...] why I'm not getting a ping [...] this thing looks like it's really broken.” (Id.). He also testified that the conversation was happening right in front of defendant and defendant blurted out “yeah, that phone's broken, you can have it.”[3] (Id.). Agent Brostko testified that he confirmed with defendant that he could take the phone and defendant stated that he could. (169-73.). Agent Brostko explained that he asked about the phone, and seized it, because, based on his experience, cell phones often contain evidence of these types of crimes. (Tr. 172). He stated that, if he had not obtained consent to seize the phone, he would have stayed on the scene longer and would have contacted the U.S. Attorney's Office to try to get a warrant for the phone. (Id.). Agent Zeithammel testified that he had no recollection of any statements made by defendant about the seizure of a phone during the arrest. (Tr. 33). Later, he learned the phone had been recovered from a room. (Tr. 118). The agents did not have a search or seizure warrant for the cell phone. (Tr. 91).
*5 At some point after defendant was handcuffed, Agent Brostko recalled that Ms. Munn said something like, “I have neighbors, I don't want anyone to see this.” (Tr. 166; 223). She requested that defendant be brought back into the apartment so that she would not have trouble with her neighbors. (Tr. 166). Agent Brostko testified that defendant was eventually pulled back into the apartment. (Tr. 223).
After defendant's arrest, he was driven by Agent Zeithammel and Agent Brostko to the Pensacola ATF office. (Tr. 34; 173). During the drive, Agent Brostko recalls some “general conversation” with defendant about why he was under arrest. (Tr. 174). He did not question him. (Id.). He did not discuss the murder investigation. (Id.). At the field office, defendant was placed in an interview room, which was wired for audio and video recording. (Tr. 36) The interview was recorded, and that recording has been admitted into evidence and reviewed by this Court. (Govt's Ex. 6). After being seated on a bench, defendant's handcuffs were removed, and his left leg was shackled to the wall. (Tr. 42; Govt's Ex. 6). The room had a small table in front of the bench. (Govt's Ex. 6). Agent Brostko sat across the table from defendant and Agent Zeithammel sat in a chair to defendant's rights. (Id.). During the interview, defendant was provided a drink, permitted to use the bathroom, and permitted to smoke a cigarette. (Tr. 48-49; Govt's Ex. 6).
At the beginning of the interview, Agent Brostko read the defendant his Miranda rights from the “Statement of Rights” section of ATF Form 3200.4. (Tr. 44; 179; Govt's Exs. 5, 6, 6A). Agent Brostko then explained that by signing the Miranda waiver form, defendant was acknowledging that he read the statement, that he was waiving his rights, and that he was willing to speak with the agents. (Id.). Agent Brostko did not read the “Waiver” portion of the form “word for word.” (Tr. 175). Instead, he gave a brief description of it and asked defendant if he understood. (Id.). He omitted one sentence printed on the form (under the title of “Waiver”) that read “No promises or threats have been made to me, and no pressure or force of any kind has been used against me.” (Tr. 131; Govt. Ex. 5; 6A, pg. 3). After this, Payne immediately put his hand out to take the form and pen from Agent Brostko so that he could sign it. (Tr. 179-80, Govt. Ex. 6). Payne was handed the form and he signed it. (Govt. Ex. 5). The agents believed that defendant understood what was read to him and what was going on. (Tr. 46; 180).
The interview lasted between 90 minutes and two hours. (Tr. 48; Govt's Ex. 6). They spoke about the drug charges and the murder of Joshua Jalovick. (Tr. 176). Agent Brostko described the interview as cordial and professional in tone. (Id.). He stated that defendant was respectful towards him. (Id.). Defendant appeared to understand what was going on through the entire interview. (Tr. 47-49; 177). He did not appear to be in medical or emotional distress, nor was either agent aware that defendant suffered from any impairments or medical conditions. (Id.). He was appropriately responsive to all questions. (Tr. 177-78). Agent Zeithammel testified that, “[t]hroughout out the interview, [defendant] was clear and articulate. He had all of his faculties, he responded to questions in, you know, coherent manner.” (Tr. 46). During the interview, defendant spoke about colleges he has attended, stating, “I'm a school boy. [...]. I've been to ECC, NCCC, University of West Florida. I was accepted in Independence University.” (Tr. 50; Govt's Ex. 6A, pg. 12).
*6 At times defendant got loud and demonstrative. (Tr. 178). Agent Brostko testified that he did not threaten defendant at any time, nor did he remove his weapon from its holster. (Tr. 178-79). Agent Zeithammel testified that he brought up defendant's family at times during the interview. (Tr. 52-53). He used an interrogation technique where he asks a suspect what he or she would tell his or her mother and asks whether he or she would lie to his or her mother. (Id.). Defendant brought up his own son to emphasis that he was not lying. (Tr. 53).
During the interview, defendant first stated he was not present at 87 Freund Street, where Jalovick was killed, on the day of the murder. (Tr. 183-84; Govt. Ex. 6). Later, he changed his story and admitted to being in the backyard at 87 Freund on that date, minutes before Jalovick was killed. (Id.).
Agent Brostko also testified about the reasons for the delay between his seizure of defendant's cell phone on August 20, 2019 and his application for a warrant to search the contents of that phone on September 12, 2019. (Tr. 185-98; Govt's Ex. 13). During this period, Agent Brostko stated that he was working on this case. (Tr. 187). He applied for multiple additional search warrants, interviewed multiple people, and received grand jury subpoenas for Roland Eady, Raejah Blackwell, Eric Brooks, and Daeshawn Stevenson. (Tr. 187-89). He attempted to locate these witnesses and personally serve them with the subpoenas. (Tr. 189). He was also investigating defendants Payne and Hay's drug dealing activities in Cattaraugus County, which included driving the distance from Little Valley, New York to Buffalo, New York to meet with investigators on August 26, 2019. (Tr. 190-91). Agent Brostko spent time on August 28, 2019 working with prosecutors on the grand jury presentation. (Tr. 193). He prepared search warrant applications for a “geofence” warrant to serve on Google and to obtain a DNA swab from defendant Hay. (Tr. 193-95). Those warrants were signed on August 30, 2019 and September 4, 2019, respectively. (Govt's Exs. 10, 11). On September 9, 2019, Agent Brostko obtained another cell phone (that he intended to seek authorization to search) from an individual who has a child-in-common with defendant Hay. (Tr. 196-76). On September 11, 2019, Agent Brostko was prepared to present the warrant to search defendant's cell phone. (Tr. 195-97; Govt's Ex. 3). This Court was not available to review the warrant application until the following day, September 12, 2019, when the warrant was signed. (Id.; Govt's Ex. 13).
Defendant's mother, Tammie Munn Scott, was called by the defense to testify about the events she observed on August 19 and August 20, 2019. On August 19, while she was at work, she received a phone call from husband, Reginald Scott, informing her that officers came to her house looking for her son. (Tr. 261-63). Defendant arrived at her residence later that day, a fact which she learned from a FaceTime call from her grandchildren while she was at the store. (Tr. 263-64). When she returned home, she told defendant that ATF agents were looking for him and wanted to question him about something he saw. (Tr. 265). She gave him the agent's card and defendant called the agent. (Id.). She heard defendant tell the agent that he could come to his mom's house to talk to him the next morning. (Id.).
The next day, August 20, 2019, agents arrived at Ms. Munn's house. (Tr. 266). Present at the residence were defendant, Ms. Munn, and her three grandchildren. (Id.). Agents knocked on the apartment door and Ms. Munn opened it. (Tr. 267). She saw three officers at first: a younger male, an older male, and a female. (Tr. 268). When she opened the door, defendant was at the end of the hallway near the entrance of the living room area. (Tr. 268-69).
*7 Ms. Munn testified that the agents were wearing bulletproof vests. (Tr. 270). She did not see any weapons at first and they did not unholster their weapons at any time during the interaction. (Id.). One agent, who was outside the apartment, wore “fatigue gear” and carried a “big gun.” (Tr. 271-72). No one pointed guns at Ms. Munn or the defendant. (Tr. 293). She stated that her conversations with the agents were cordial and she was treated with respect. (Tr. 294).
An agent said they were looking for defendant. (Tr. 270). Ms. Munn called for defendant and stood behind him as he stepped toward the door. (Tr. 271). Defendant “flinched a little bit” and Ms. Munn held his back so he would not move. (Tr. 271). An agent grabbed defendant by the arm and handcuffed him on the landing outside of Ms. Munn's apartment. (Tr. 271, 274-75).
After defendant was secured by the agents, Ms. Munn went back inside the apartment to get sneakers and a jacket for her son from a bedroom. (Tr. 274-75). Regarding entry of agents into the apartment, Ms. Munn gave the following testimony:
Q: [...] Were you followed into the apartment by anyone?
A: I can't recall them following me, but they were there when I came to bring his shoes.
Q: Who came in there?
A: I know the older guy and the lady, for sure.
(Tr. 275). She walked out of the apartment to give defendant the clothing and then returned back to the kitchen area, where she spoke with those two agents. (Tr. 276). They told her about the federal drug warrant and asked about defendant's friend “Gunner.” (Tr. 277). Ms. Munn was asked if her son had a firearm and she replied, “I don't fucking play that in my house, ain't none in here.” (Tr. 296). She testified that she then gave the agents permission to look at defendant's bag and clothes for any firearms. (Id.).
Ms. Munn testified that the agents then went outside, at which time she asked, “could you hurry up because these neighbors are nosy, and could you all come inside so we can handle this inside?” (Tr. 279). She was concerned that the commotion of the arrest was going to cause problems with her apartment rental. (Tr. 281). Ms. Munn testified that the younger ATF agent declined to bring defendant back inside. (Tr. 279-80). She stated that defendant was never brought back into the apartment. (Tr. 281, 284).
Ms. Munn testified that after looking at the clothing, one of the agents asked if defendant had a cell phone with him. (Tr. 283, 297). She stated, “[t]hey said something about a phone, and I was like, it's in there,” as she pointed towards the bedroom. (Tr. 283). Ms. Munn could not recall if the agents went in the apartment to get the phone or if she handed it to the agents. (Tr. 283, 297). She testified, “I have no, like, visual recollection of that.” (Tr. 283). She did not hear defendant tell Agent Brostko that the phone was broken or that he could have it. (Tr. 284). She was out of earshot from defendant for some of the time. (Tr. 298). She testified that there were five Apple iPhones in the apartment on that day, including her own, the defendant's, and her three grandchildren's phones. (Tr. 299). About a week before defendant arrived in Pensacola, Ms. Munn became aware that defendant had broken his phone and that he was communicating using another phone. (Tr. 300-01).
After that, Ms. Munn testified that they all walked down the stairs and the agents and defendant got into a car in front of the stairway. (Tr. 284). An agent told Ms. Munn that defendant would be appearing in court around 2:30 p.m. (Tr. 285). She then went back upstairs to her apartment and waited with her grandchildren before driving to the federal court building. (Tr. 285-86).
*8 Ms. Munn also testified that defendant has a history of physical and mental abuse at the hands of his father which occurred for many years during defendant's childhood. (Tr. 294-95). This abuse led to proceedings in family court. (Id.). She stated that defendant has been diagnosed with attention deficit and oppositional defiance disorders and at times is depressed. (Id.).
It is noted that after having the opportunity to listen to Agent Zeithammel and Agent Brostko and observe their demeanors during the hearing, the Court finds them to be wholly credible. Defendant Payne presented the testimony of Ms. Munn, which the Court also finds to be generally credible. The Court does not find Ms. Munn's testimony to be in conflict with that of Agent Zeithammel or Agent Brostko, nor does it find the testimony of either agent to be in conflict with that of the other.
In particular, Ms. Munn's testimony about whether she gave consent to enter the apartment was unclear. She did not state that she never gave consent, nor could she recall the exact circumstances of any agent entering her apartment. Notably, her testimony echoed that of Agent Brostko on that fact that, at some point during these events, she asked the agents to come inside her apartment to avoid her neighbors observing the arrest. Overall, the witnesses all agreed that no weapons were drawn and the conversations that occurred between them were cordial and respectful. Ms. Munn also could not recall how the agents came into possession of defendant's phone. Her lack of recollection, combined with the undisputed fact that there were four other Apple iPhones phones in the apartment, supports a finding that Agent Brostko was voluntarily given the iPhone belonging to defendant after he asked about it. Indeed, the only point on which Ms. Munn expressly contradicted Agent Brostko's recollection of the events, was as to whether defendant was brought back into the apartment at her request or whether he remained in the hallway after arrest.
Further, although Agent Zeithammel did not recall a conversation between Agent Brostko and Ms. Munn regarding consent to enter or search her apartment, he did not deny that such an exchange occurred. In fact, he explained that he may not have been able to hear them speaking or his attention may have been focused on other things at that time. What he did observe, namely that he saw them speaking with “cordial” body language, is generally supportive of Agent Brostko's testimony that Ms. Munn gave him permission to enter the apartment and voluntarily provided defendant's bag and cell phone to Agent Brostko.
Defendant did not provide testimony in support of his motion to suppress. He did submit an affidavit making factual allegations about the circumstances of the seizure of his cell phone and the conditions of his custodial interrogation.[4] (Dkt. No. 248-1). In his affidavit, defendant asserts that “approximately seven agents, brandishing assault rifles, demanded that [he] exit [his] mother's home.” (Id., at ¶ 6). After exiting the door, defendant states he was seized and handcuffed while agents “continu[ed] to aim assault rifles in [his] direction.” (Id., at ¶ 8). He further states that agents were “not invited or allowed into the house” but that, after taking defendant into custody, agents “demanded entry into [defendant's] mother's home in order to seize [his] cell phone.” (Id., at ¶ 9). Defendant asserts that he did not consent to agents seizing his phone. (Id., at ¶ 10).
*9 Regarding the conditions of interrogation, defendant's affidavit confirms many of the facts established by the testimony, including that he was transported from his mother's residence to a law enforcement office, that he was told he was under arrest, and that he was placed in a small room where he was shackled to the wall. (Id., at ¶ 11). Defendant does not dispute that he was advised of his Miranda rights. In fact, he attests that Agent Brostko and another agent came into that room and began interrogating him after reading him a Miranda warning. (Id., at ¶ 12). He submits that he did not feel he was free to leave during the interrogation and he felt he had no choice but to speak with the officers. (Id., at ¶¶ 12, 16). Defendant states that he was very nervous during the interrogation and that he was physically shaking. (Id., at ¶ 13). He asserts that, after forty-five minutes of questioning, he was permitted to use the bathroom and smoke a cigarette in a hallway. (Id., at ¶ 14). While he was smoking, agents asked him about his son, and repeatedly asked if he was present at 87 Freund Street on July 1, 2019. (Id.). Defendant states that he felt coerced into discussing the case by the agents’ frequent mention of his mother and his young son. Defendant further asserts that he was subjected to verbal and physical abuse during his childhood and the subject of custody disputes in Erie County Family Court. (Id., at ¶ 17). He was diagnosed with attention deficit hyperactivity disorder at a young age. (Id., at ¶ 18). Defendant states that his difficult upbringing and medical condition make it difficult for him to function in social environments such as school and work. (Id., at ¶¶ 19-21). As a result, he submits that his statements made to law enforcement during his interrogation were involuntary. (Id., at ¶ 22).
The credible, detailed, and live testimony of Agent Zeithammel, Agent Brotsko, and Ms. Munn, which was subject to cross-examination, plainly contradicts several of defendant's claims. Thus, the Court declines to credit the self-serving statements in defendant's affidavit that agents “demanded entry” into his mother's home, that agents were “brandishing assault rifles,” that no one gave consent for such entry, and that defendant did not consent to agents seizing his phone. See DiMattina v. United States, 949 F. Supp. 2d 387, 411 (E.D.N.Y. 2013) (“Without the threat of cross-examination, [the defendant's] affidavits are viewed as self-serving and given little weight.”); United States v. Polanco, 37 F. Supp. 2d 262, 264 n. 4 (S.D.N.Y. 1999) (“[T]he self-serving affidavit of the moving defendant is usually disregarded if he declines to testify at the hearing.”); United States v. Murray, 6:14-CR-06183, 2015 U.S. Dist. LEXIS 162846, *12 (W.D.N.Y. Dec. 4, 2015) (declining to credit defendant's affidavit indicating that his statements to officers were involuntary and the product of interrogation because the defendant was not subjected to cross-examination and the hearing testimony did not support his version of events). Similarly, although the Court has considered the statements about defendant's history of abuse and personal characteristics, the Court declines to credit defendant's claim that he was coerced into discussing his case in light of the live testimony and video recorded evidence to the contrary.
The Court's recommendations and decisions as to defendant's motions to suppress, motions to dismiss, and motion to compel additional discovery are detailed as follows.
MOTION TO SUPPRESS PHYSICAL EVIDENCE
“The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.” Schmerber v. California, 384 U.S. 757, 766 (1966). The touchstone of the Fourth Amendment is reasonableness, which “requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Bell v. Wolfish, 441 U.S. 520, 559 (1979); United States v. Valentine, 539 F.3d 88, 93 (2d Cir. 2008) (the Fourth Amendment prohibits unreasonable searches and seizures). To that end, courts are instructed to consider “the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell, 441 U.S. at 559.
Defendant first moves for suppression of digital evidence obtained from his Apple iPhone 6 cellular telephone on the basis that the Government did not have authority for the warrantless seizure of the phone from inside his mother's residence at the time of his arrest. (Dkt. Nos. 223; 248, pgs. 10-13; 309; 318). He argues that although law enforcement had a warrant for his arrest, they did not have a search warrant, they had not obtained consent to search the residence, and the search was not justified by extenuating circumstances. The Government primarily argues that the search and seizure were lawful based on consent.[5] The Court agrees.
*10 “It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is ‘per se unreasonable ... subject only to a few specifically established and well-delineated exceptions.’ ” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). One such exception is that a warrantless entry and search are permissible if the authorities have obtained the voluntary consent of a person authorized to grant such consent. United States v. Elliott, 50 F.3d 180, 185 (2d Cir. 1995). Voluntariness is determined by reference to the totality of the circumstances. United States v. Snype, 441 F.3d 119, 131 (2006). Consent is voluntarily if it has not been “coerced, by explicit or implicit means, by implied threat or covert force” and is not “granted only in submission to a claim of lawful authority.” United States v. Garcia, 19-CR-410, 2021 U.S. Dist. LEXIS 150129, at *14-15 (E.D.N.Y. Aug. 10, 2021) (quoting Bustamonte, 412 U.S. at 228); see also United States v. Wilson, 11 F.3d 346, 351 (2d Cir. 1993) (opining that consent must be a product of an individual's free and unconstrained chose, rather than a mere acquiescence to a show of authority). When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he or she has the burden of proving that the consent was freely and voluntarily given. Bustamonte, 412 U.S. at 222.
Voluntary consent may be express or implied. United States v. Lakoskey, 462 F.3d 965, 973 (8th Cir. 2006). It is also well-settled that consent may be inferred from an individual's words, gestures, or conduct. United States v. Buettner-Janusch, 646 F.2d 759, 764 (2d Cir. 1981). In showing proof of voluntary consent, the prosecution is not limited to consent given by the defendant, “but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171 (1974). Police officers may search jointly occupied premises so long as one of the occupants consents. See Fernandez v. California, 571 U.S. 292, 294 (2014). The Second Circuit has held that “a third-party consent to a search will validate the search if two prongs are present: first, the third party had access to the area searched, and, second, either: (a) common authority over the area; or (b) a substantial interest in the area; or (c) permission to gain access.” United States v. Davis, 967 F.2d 84, 87 (2d Cir. 1992).
In Davis, the Court encountered facts similar to those presented here. There, after arresting Eugene Content for cocaine trafficking, federal agents found a set of keys which led them to the apartment of another individual, Lamont Cleare. 967 F.2d at 85. Cleare said that he had given Content a key to his apartment and Content had left some things in Cleare's footlocker. Id. When the agents asked for a key to the footlocker, Cleare said he had given Content the only key to the locker. Id. Nonetheless, Cleare gave permission to the agents to search it. Id. The agents were able to unlock it using one of the confiscated keys and inside they discovered drug paraphernalia and a quantity of cocaine. Id. On appeal, the defendant argued that Cleare did not have sufficient authority to consent to a search of the footlocker or the closed containers found therein. Id., at 86. Relying on the Supreme Court decision Florida v. Jimeno, 111 S. Ct. 1801 (1991), the Second Circuit rejected Content's arguments and concluded that Cleare had both common authority and a substantial interest in the footlocker, and that his general consent to search the footlocker was valid. Id., at 88. The Court explained, “the underpinning of third-party consent is assumption of risk. One who shares a house or room or auto with another understands that the partner may invite strangers” and therefore, “his privacy is not absolute, but contingent in large measure on the decision of another.” Id.
*11 Initially, the Court concludes that defendant's mother, Ms. Munn, had sufficient authority to give valid consent for the search of her apartment and defendant's belongings located inside her apartment. Ms. Munn clearly had access to the area searched inside her own residence and she had common authority over the bedroom entered and belongings searched. Defendant assumed that risk by temporarily occupying his mother's residence and by bringing items, including his bag, clothing, and cell phone, into that shared space.
Further, the Court finds, based on the testimonial evidence, that Ms. Munn gave consent for agents to enter her apartment, to search defendant's belonging, and to seize defendant's Apple iPhone.[6] She first authorized their entry to search defendant's belongings for a firearm. Ms. Munn testified unequivocally that she gave permission for agents to search defendant's bag and his clothing. Ms. Munn's young grandchildren were present in the residence and she was concerned about the possibility that defendant had brought a weapon into her home. See Fernandez, 571 U.S. at 307 (providing reasons why one occupant might invite police into a residence, including that they “may want police to conduct a thorough search so that any dangerous contraband can be found and removed.”). Additionally, although the precise sequence of events is somewhat unclear, the testimony also showed that Ms. Munn asked agents to come into her apartment to minimize what her neighbors might observe during the arrest. Thus, there were several sensible reasons for Ms. Munn to give such consent.
Defendant argues that Ms. Munn did not, in fact, consent to Agent Brostko's initial entry into the home and any later consent she gave did not purge the primary taint of the agent's unlawful entry. See United States v. Vasquez, 638 F.2d 507, 527-28 (2d Cir. 1980) (holding that suppression is required of any items seized during the search of a house, unless the taint of the unlawful initial entry had been dissipated before the “consents” to search were given). The Court disagrees with defendant's contention that the initial entry into the residence was illegal. Ms. Munn testified that she went back into the apartment to get Payne's shoes and jacket, and that the agents “were there when [she] came back.” She also stated that she could not remember them following her into the apartment. Ms. Munn's uncertainty about exactly when agents initially entered her home does not compel a finding that agents entered unlawfully. Moreover, Agent Brostko provided clear testimony that Ms. Munn gave verbal consent to search the apartment for firearms, a conversation which happened at the doorway of the apartment. After obtaining her permission, Agent Brostko testified that they walked through the living room into an interior bedroom, where Ms. Munn pointed to a duffle bag and consented to its search.
Defendant further argues that even if consent was given to search some items, Agent Brostko seized his cell phone unlawfully. The Court finds that Ms. Munn also voluntarily consented to Agent Brostko seizure of defendant's cell phone. When agents asked if her son had a phone, Ms. Munn testified that she indicated his phone was in the bedroom. Ms. Munn's could not recollect if she handed the phone to agents or if they seized it themselves. Agent Brostko could recall these facts, and he testified that Ms. Munn herself produced a cell phone with a cracked screen. Agent Brostko's testimony is logically supported by the fact that there were five Apple iPhones located in the apartment on that date and Brostko had no ability identify one from the other, whereas Ms. Munn could, and did, produce the phone belonging to defendant.
*12 Lending additional support to the lawfulness of the cell phone seizure is evidence that defendant himself gave permission for Agent Brostko to take it. Agent Brostko testified that once he had the phone, defendant stated that the agent could have it because it was broken. Defendant, although handcuffed and under arrest, was able to voluntarily consent. The fact that a person is in custody or has been subjected to a display of force does not automatically preclude a finding of voluntariness. Snype, 441 F.3d at 131 (citing United States v. Ansaldi, 372 F.3d 118, 129 (2d Cir. 2004) (holding that use of guns to effectuate arrest and handcuffing of defendant did not render his consent to search his home involuntary). In fact, the evidence shows that defendant's consent was given freely, and not based on mere acquiescence to a show of force. Although, neither Agent Zeithammel nor Ms. Munn recalled hearing defendant say this to Agent Brostko, their testimony did not undermine the credible testimony of Agent Brostko that such consent was given. The recorded custodial interview also reflects defendant stating that the phone was broken, matching Agent Brostko's testimony and suggesting that the phone was of little value to defendant.[7]
Defendant next argues that, following the warrantless seizure, the Government's delay in applying for a warrant to search the contents his Apple iPhone was constitutionally unreasonable. (Dkt. Nos. 223; 248, pgs. 10-13; 309; 318). Defendant relies on United States v. Smith, in which the Second Circuit clarified the legal standard for determining whether law enforcement unconstitutionally delayed in obtaining a search warrant for a digital device following seizure of the device. See 967 F.3d 198 (2d Cir. 2020). The Government counters that based on the Smith factors there is no basis to suppress the results of the cell phone search.
“It is common for the police to temporarily seize a suspect's personal property if they have probable cause and intend to apply for a warrant to search the property for evidence of a crime.” Smith, 967 F.3d at 202. When the police seize property in this manner, the Fourth Amendment requires that they act diligently in applying for a search warrant. Id.; United States v. Mitchell, 565 F.3d 1347, 1352 (11th Cir. 2009). Both the Second Circuit and other circuits have acknowledged that “[w]e demand expediency in obtaining a search warrant to search seized evidence in order to avoid interfering with a continuing possessory interest for longer than reasonably necessary, in case the search reveals no evidence (or permissibly segregable evidence) of a crime and the item has no independent evidentiary value and is not otherwise forfeitable.” Smith, 967 F.3d at 205 (quoting United States v. Sparks, 806 F.3d 1323, 1340 (11th Cir. 2015)).
*13 To determine whether a delay is reasonable, courts must “balance the nature and quality of the intrusion on the individual's Fourth Amendment rights against the government interests alleged to justify the intrusion.” United States v. Place, 462 U.S. 696, 703 (1983). Further, the reasonableness of a delay in seeking a warrant to search legally seized property is judged “in light of all the facts and circumstances, and on a case-by-case basis.” Mitchell, 565 F.3d at 1352. In Smith, the Second Circuit identified four “[g]eneral relevant considerations” to be taken into account in evaluating the reasonableness of any delay in obtaining a warrant to search seized property. 967 F.3d at 203. These considerations include: (1) the length of the delay; (2) the importance of the seized property to the defendant; (3) whether the defendant has a reduced property interest in the seized property; and (4) the government's justification for the delay. Id.
The Court has considered the facts and circumstances presented here in light of the factors enumerated by the Second Circuit in Smith and finds that there was no unconstitutional delay in obtaining a warrant to search the contents of the cell phone seized from defendant on August 20, 2019. Moreover, even if there was an unconstitutional delay, which there was not, the application of the exclusionary rule would not be appropriate here. Thus, for following reasons, defendant's motion to suppress the evidence obtained from the extraction of his cell phone should be denied.
The first factor, the length of delay, weighs in favor of the defendant. In Smith, the Second Circuit concluded that a month-long delay between the seizure of property and the application for a search warrant was presumptively unreasonable. 967 F.3d at 206-07. The Court also observed that in some circumstances a delay of 11 days might constitute unreasonable delay, and that the Court would normally expect police officers to secure a search warrant in considerably less time. Smith, 967 F.3d at 206 (quoting United States v. Martin, 157 F.3d 46, 54 (2d Cir. 1998)). Here, there was a 23-day delay between the seizure of the phone on August 20, 2019 and application for the warrant which was issued by this Court on September 12, 2019. One day of that time period is attributable to this Court's unavailability to review the warrant application on the day it was submitted, reducing the Government's delay to 22 days.[8] Nonetheless, the period of delay was longer than should be expected of a diligent officer. For these reasons, the Court finds that the first factor weighs in favor of the defendant.
The second factor to be considered, the importance of the seized property to defendant, focuses on defendant's relationship to the cell phone, including “the extent to which the phone[s] contain[ ] business or personal information, and the efforts [d]efendant has made to obtain [their] return.” United States v. Berroa, 19-CR-10164, 2021 U.S. Dist. LEXIS 7947 (D. Mass. Jan. 15, 2021). In Smith, the Second Circuit emphasized the “fundamental distinction between one's ordinary personal effects and one's personal electronic devices.” Id. at 207. See, e.g., Riley v. California, 573 U.S. 373 (2014) (affording broader constitutional protections when police seize a “smart” cell phone in light of the large storage capacity of modern cell phones and how people commonly use them to store vast amounts of personal data). The cell phone in question is an Apple iPhone, capable of storing an “immense amount of personal data,” however, the remaining facts and circumstances of this case substantially diminish the importance of the device to defendant.
*14 Here, defendant admitted that the phone was broken and inoperable when it was seized. In fact, defendant had been using another phone to communicate with his mother. The defendant now argues that the broken phone's value to him was not diminished and the Government's extraction of data from it evidences that it could have been fixed. However, defendant has not submitted an affidavit establishing the unique importance of this device to him, nor did he present any evidence at the hearing regarding that importance. Further, as far as the Court is aware, defendant has not sought the return of the item.
Moreover, defendant has been detained pending trial since his arrest on August 20, 2019. His continued inability to possess or use the cell phone while incarcerated significantly diminishes the importance of its prompt return. See In re Search Warrant, 3:20-MJ-00855, 2020 U.S. Dist. LEXIS 218558, at *12-13 (D. Conn. Nov. 23, 2020) (finding, under the Smith analysis, that the importance of the seized property to the target weighed “strongly” in favor of the government, since “the target has been criminally charged and remains detained pending trial [and] [a]s such, he would be unable to make use of the devices, even if they had not been seized.”); United States v. Loera, 333 F. Supp. 3d 172, 186 n. 6 (E.D.N.Y. 2018) (“Courts have routinely upheld periods of delay [ ] between procuring the information and searching it where, as here, law enforcement's retaining the thing to be seized did not interfere with defendant's ability to use it.”); United States v. Kowalczyk, 3:08-95, 2012 U.S. Dist. LEXIS 108879 (D. Or. Aug. 3, 2012) (finding delay reasonable because, “since [the defendant] was in custody, there was no evidence that withholding access to his computers and other digital evidence was prejudicial.”). For these reasons, the Court finds the second factor weighs in favor of the Government.
The third factor assesses whether a defendant has a reduced property interest in the seized property. Here, the defendant's interest in the cell phone was diminished and the factor weighs in favor of the Government. An individual has a diminished interest in his seized property where law enforcement has probable cause to believe that the property contains evidence of criminal activity. Smith, 967 F.3d at 208. “The state has a stronger interest in seizures made on the basis of probable cause than in those resting only on reasonable suspicion” and “[a]ll else being equal, the Fourth Amendment will tolerate greater delays after probable-cause seizures.” Id. (quoting United States v. Burgard, 675 F.3d 1029 (7th Cir. 2012)).
Here, the record supports a finding that probable cause existed for the seizure of defendant's phone. Defendant was arrested on a warrant for drug trafficking, and law enforcement had probable cause to believe the phone would contain evidence of drug trafficking or evidence related to the pending murder investigation. Supporting this fact, Agent Brostko testified he would have sought a search warrant for the phone if he had not obtained consent to seize it at the scene.[9] More importantly, this Court has found that the phone was seized with defendant's consent, greatly diminishing his property interest in the phone. See In re Search Warrant, 2020 U.S. Dist. LEXIS 218558, at *16 (applying the Smith factors and determining that defendant's reduced property interest in the seized electronic devices weighed heavily in favor of the government since the seizure of the devices were either by consent or pursuant to a warrant). For these reasons, the Court finds that the third factor weighs in favor of the Government.
*15 In Smith, the Second Circuit found that the fourth factor, the justification for the delay, weighed in favor of the defendant, because law enforcement “was not diligent in seeking a warrant to search [the defendant's] tablet, and there were no overriding circumstances to justify the month-long delay.” 967 F.3d at 211. The Smith Court noted that the officer involved had engaged in virtually no investigation of the defendant's case between seizing the electronic device and applying for a search warrant four weeks later. Id., at 210-11. Further, the record in Smith did not show that there “was any particular investigation or police duty that specifically delayed” the officer in applying for a warrant. Id., at 210. It went on to explain that “[t]he fact that a police officer has a generally heavy caseload or is responsible for a large geographical distance does not without more entitle the officer to wait without limit before applying for a warrant to search an item that the officer has seized.” Id.
The facts here are distinguishable from Smith. Agent Brostko testified that during the lapse between the phone's seizure and warrant application he was working diligently on investigating and developing this case, including interviewing several witnesses, serving grand jury subpoenas, and obtaining other warrants related to co-defendants. This is indisputably a complex case of serious consequence. Although defendant relies on Smith to argue that the agent's workload does not excuse such a delay, the Second Circuit also acknowledged “that there may be occasions where the resources of law enforcement are simply overwhelmed by the nature of a particular investigation, so that a delay that might otherwise be unduly long would be regarded as reasonable.” Id., at 211. Under these circumstances, the Court finds that the Government has provided adequate justification for the modest delay and concludes that this factor weighs slightly in the Government's favor.
In sum, the first factor weighs in favor of defendant, while the second, third, and fourth factors weigh in favor of the Government. After taking these factors, and all the facts and circumstances, into consideration, the Court concludes that there was no unconstitutional delay in obtaining a warrant to search the contents of the phone seized from defendant on August 20, 2019. See In re Search Warrant, 2020 U.S. Dist. LEXIS 218558, *15 (issuance of a search warrant notwithstanding delay following seizure where, the first and fourth factors weighed in favor of the defendant but the second and third factors weighed strongly in favor of the government, and therefore “the actual impact of [the] delay on the rights and property interests of the target...was not significant.”).
The Court has also considered whether application of the exclusionary rule would be appropriate if a reviewing court were to consider the Smith factors and find, contrary to the analysis herein, that the delay in obtaining a warrant did cause a Fourth Amendment violation. It concludes that suppression would still not be warranted. In Smith, the Second Circuit found that while the delayed search of the defendant's tablet computer violated the Fourth Amendment, “not every violation of the Fourth Amendment justifies invocation of the exclusionary rule to require suppression of evidence.” 967 F.3d at 211. Instead, “the exclusionary rule applies only if the police have violated the Constitution deliberately, recklessly, or with gross negligence, or if a constitutional violation is the product of a recurring or systemic negligence.” Id.; accord Davis v. United States, 564 U.S. 229, 236-40 (2011). In Smith, the Second Circuit declined to apply the exclusionary rule since the record did not show that the officer in question acted with deliberate indifference to the defendant's constitutional rights; that his behavior was reckless or grossly negligent; or that the delay was related to recurring or systemic negligence. 967 F.3d at 211-12. The Second Circuit further found that the delay did not afford the police any strategic advantage in the case, and that a reasonably well-trained officer would not necessarily have known that waiting one month to apply for a warrant amounted to a violation of the defendant's constitutional rights. Id. Thus, “[t]here would be no appreciable deterrent value achieved by ordering suppression of the evidence” obtained from defendant's tablet. Id. at 211.
*16 Here, the court can discern no apparent advantage gained by agents based on waiting to seek the warrant. It is apparent to the Court that the delay occurred simply because Agent Brostko was actively involved in the complex, ongoing investigation of this case. Further, the Court finds that no reasonably well-trained officer in Agent Brostko's position would have known that the 22-day delay “amounted to no less than a violation of [defendant's] Fourth Amendment rights.” Smith, 967 F.3d at 212. The seizure of defendant's cell phone occurred approximately eleven months before the Second Circuit issued its decision in Smith. Prior to that time “precedent ran both ways” as to what amount of time between seizure and obtaining a search warrant was likely to amount to a constitutional violation. Id. (“For better or worse, this is not an area of Fourth Amendment law that has reduced itself to bright line rules.”). See e.g., United States v. Howe, 545 F. App'x 64, 65-66 (2d Cir. 2013) (characterizing the thirteen-month delay in obtaining a search warrant as “lengthy”, but not unreasonable under the circumstances); United States v. Sharma, 18 Cr. 340, 2019 U.S. Dist. LEXIS 136584, at *19-20 (S.D.N.Y. Aug. 13, 2019) (“That the Government obtained a search warrant, for [the iPhone and laptop] three months after the devices were seized was not unreasonable.”).
In light of these facts, there would be no “appreciable deterrent value” gained by suppressing the evidence obtained from the warrant to search the contents of the Apple iPhone, even if a Fourth Amendment violation had occurred. See Berroa, 2021 U.S. Dist. LEXIS 7947, at *18-21 (even though the fifteen-month delay in obtaining a warrant to search seized property violated the Fourth Amendment in light of the Smith decision, application of the exclusionary rule would have been inappropriate since there was “nothing in the record to suggest bad faith or anything beyond an instance of isolated negligence.”).
Defendant also moves to suppress the evidence obtained from his Apple iPhone on the grounds that the search warrant issued by this Court was not supported by probable cause. (Dkt. No. 223, ¶¶ 56-67). Defendant controverts the search warrant on the grounds that the search application failed to sufficiently link the item (cell phone) to be searched to the suspected criminal activity and that, even if there was probable cause, the warrant was overboard. In his reply memorandum, defendant additionally argues that the “good faith” exception to the exclusionary rule should not apply because the issuing magistrate was misled by information that the affiant knew was false or would have known was false except for his reckless disregard of the truth. The Government counters that the warrant was supported by probable cause and was not overbroad.
Upon a challenge to a probable cause finding made in a search warrant, a reviewing court must give deference to the issuing judge. Illinois v. Gates, 462 U.S. 213, 236 (1969). The court is not to conduct a de novo review nor is it to “interpret[ ] affidavit[s] in a hypertechnical, rather than a commonsense, manner.” Id. Instead, the role of a reviewing court “is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” Id. at 238 (internal citations omitted). The probable cause analysis is based on the totality-of-the-circumstances, with the task of the issuing magistrate to “simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him [...] there is a fair probability that contraband or evidence of a crime will be found in a particular place.” See Illinois v. Gates, 462 U.S. 213, 238 (1983). Where, as here, the Court is reviewing the probable cause determination of an independent magistrate, it asks solely “whether the issuing judicial officer had a substantial basis for the finding of probable cause.” United States v. Wagner, 989 F.2d 69, 72 (2d Cir. 1993). Doubts regarding the existence of probable cause should be resolved in favor of upholding the search warrant. United States v. Travisano, 724 F.2d 341, 345 (2d Cir. 1983).
*17 To that end, warrant affidavits are entitled to “a presumption of validity.” Franks v. Delaware, 438 U.S. 154, 171 (1978). The Supreme Court has held that a defendant is entitled to an evidentiary hearing with respect to the validity of a search warrant only if they can make a substantial preliminary showing that: (1) the warrant affidavit contained a false statement; (2) the false statement was included intentionally or recklessly; and (3) the false statement was integral to the probable cause finding. 438 U.S. at 155-56. The Second Circuit has held that “[i]f, after setting aside the allegedly misleading statements or omissions, the affidavit, nonetheless, presents sufficient information to support a finding of probable cause, the district court need not conduct a Franks hearing.” United States v. Salameh, 152 F.3d 88, 113 (2d Cir. 1998).
Applying this standard of review, the Court has reviewed the warrant and warrant application and finds that probable cause existed for its issuance. Indeed, the search warrant was plainly supported by probable cause sufficient to justify a search of the contents of defendant's cell phone. The application, made by Agent Brostko, contained a detailed affidavit discussing the investigation of defendant Payne and defendant Hay for cocaine trafficking and in connection with the murder of a federal informant. Defendant argues that there was no indication that he, as opposed to Hay, used his cell phone in connection with drug trafficking. Defendant relies primarily on United States v. Rosa for the holding that a search warrant for electronic media must “link the items to be search and seized to the suspected criminal activity” and failure to provide ““meaningful parameters on an otherwise limitless search of [a defendant's] electronic media” will render a warrant defective. See 626 F.3d 56, 62 (2d Cir. 2010).
Contrary to defendant's arguments, Agent Brostko's affidavit contained sufficient information to support the probable cause finding. He attested that, through his training and experience, he is familiar with how cell phones are utilized by drug traffickers to facilitate illegal transactions and that searches of phones seized from drug traffickers often result in recovery of evidence related to such illegal activity. Courts in the Second Circuit frequently have found probable cause to search cell phones possessed by individuals in connection with drug distribution crimes on the basis that “traffickers commonly use cell phones to communicate in the course of their narcotics distribution, as well as to store relevant information, including names and contact information of suppliers, purchasers, and confederates.” United States v. Hoey, 15-CR-229, 2016 U.S. Dist. LEXIS 7261, at *26-27 (S.D.N.Y. Jan. 21, 2016) (collecting cases); see United States v. Estime, 2020 U.S. Dist. LEXIS 191242, at *53-55 (S.D.N.Y. Oct. 14, 2020) (“[C]ourts have found probable cause to support the search of a cellphone seized incident to an arrest even where the search warrant application did not introduce into evidence any specific communications sent from, or received by, the seized phone.”); United States v. Westley, 3:17-CR-171, 2018 U.S. Dist. LEXIS 109909, at *34-35 (D. Conn. July 2, 2018) (upholding seizure of cell phones related to narcotics offense because the “link between narcotics offenses and cell phones is a close one”). Further, the affidavit plainly lays out evidence of text messages sent between defendant Payne and his girlfriend minutes after the murder of Jalovick. It also described Payne's recantation of his statement regarding his presence at the scene of the homicide. It is clear to the Court that the phone would likely contain location data and other evidence relevant to these crimes. Thus, the warrant application sufficiently linked evidence to be found on Payne's cell phone with the crimes alleged.
*18 The Court further finds that the warrant was not overbroad. Here, in contrast to Rosa, the warrant expressly limited the information that could be searched in relation to the alleged violations. In support of the information to be searched, the application discussed the manners in which cell phones are utilized to facilitate criminal activity and how they contain evidence of crimes, including but not limited to storing contacts, storing text messages and emails, storing photographs and videos, storing audio files, accessing the internet, and device location information. It accordingly sought permission to search the device for evidence within that scope. Probable cause, as laid out in Agent Brostko's affidavit, supported the breadth of the warrant and the information sought.
For these reasons, the Court recommends that defendant's motion to controvert this search warrant and suppress the evidence derived therefrom should be denied.
Defendant's motion to suppress should also be denied based on the “good faith exception” established in United States v. Leon, 468 U.S. 897 (1984). Under Leon, evidence seized pursuant to a challenged warrant is not subject to suppression so long as law enforcement acted with objective and reasonable good faith, even if the judicial officer erred in finding probable cause. Id. at 922. Here, there is no evidence that any officer intended to mislead the magistrate, and the Court finds that the law enforcement officers who executed the search warrant had a good faith basis to believe that the warrant was lawfully issued based upon a finding of probable cause. The warrant application certainly was “not ‘so lacking in indicia of probable cause’ that it was unreasonable for the officers to rely upon” them. United States v. Moore, 968 F.2d 216, 222 (2d Cir. 1992) (quoting Leon, 468 U.S. at 923). Thus, defendant's motion to suppress may also be denied on this alternative ground.
In sum, and for the foregoing reasons, the Court finds that the seizure and subsequent search of defendant's Apple iPhone 6 was lawful and recommends that defendant's motion to suppress the evidence gained from the device be denied.
MOTIONS TO SUPPRESS STATEMENTS
Defendant moves to suppress statements that he made during a custodial interview on August 20, 2019, following his arrest. He also moves to suppress statements he made to an unknown jailhouse informant. Each motion is addressed separately below.
Defendant argues that statements he made during his custodial interview on August 20, 2019 should be suppressed as involuntary and taken in violation of his Fifth and Fourteenth Amendment rights. (Dkt. No. 223, ¶¶ 46-55; 309, pgs. 21-28). The Government refutes this and submits that the facts set forth in the evidentiary hearing show that defendant made such statements after knowingly and voluntarily waiving his Miranda rights, and that they were not the product of coercion.
A suspect in custody must be advised prior to any questioning “that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” Miranda v. Arizona, 384 U.S. 436, 479 (1966). “Even absent the accused's invocation of [his Miranda rights], the accused's statement during a custodial interrogation is inadmissible at trial unless the prosecution can establish that the accused ‘in fact knowingly and voluntarily waived [Miranda] rights’ when making the statement.” Berghuis v. Thompkins, 560 U.S. 370, 382 (2010) (second alteration in original) (quoting North Carolina v. Butler, 441 U.S. 369, 373 (1979)). Here, the parties do not dispute that defendant made statements to Agents Brostko and Zeithammel in the context of a custodial interrogation after having been read his Miranda rights. The issue before the Court is thus whether defendant knowingly and voluntarily waived his Miranda rights when making those statements.
*19 “To prove a valid waiver, the government must show (1) that the relinquishment of the defendant's rights was voluntary, and (2) that the defendant had a full awareness of the right being waived and of the consequences of waiving that right.” United States v. Jaswal, 47 F.3d 539, 542 (2d Cir. 1995). “Only if the totality of the circumstances ‘reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.’ ” United States v. Male Juvenile, 121 F.3d 34, 40 (2d Cir. 1997) (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). “[W]aiver need not be express.” United States v. Plugh, 648 F.3d 118, 127 (2d Cir. 2011). So long as “the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent.” Berghuis, 560 U.S. at 384. The government must prove waiver by a preponderance of the evidence. See United States v. Gaines, 295 F.3d 293, 297 (2d Cir. 2002).
To satisfy the Fifth Amendment, a suspect does not need to know and understand every possible consequence of a waiver. See Moran, 475 U.S. at 422. A waiver is made knowingly and intelligently if the defendant has a “full awareness of both the nature of the right being abandoned and the consequence of the decision to abandon it.” See id., at 421. The government must prove the validity of a waiver by showing that the accused knew he could choose not to talk to law enforcement, to talk only with counsel present, or discontinue talking at any time. See Colorado v. Spring, 479 U.S. 564, 574 (1987).
The Government must also demonstrate that defendant's Miranda waiver was made voluntarily. For waiver to be voluntary, it must be “the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Moran, 475 U.S. at 421. Voluntariness is based upon the totality of the circumstances and includes an inquiry as to: “(1) the characteristics of the accused; (2) the conditions of the interrogation; and (3) the conduct of law enforcement officials.” Green v. Scully, 850 F.2d 894, 900 (2d Cir. 1988). More specifically, the factors “include the accused's age, his lack of education or low intelligence, the failure to give Miranda warnings, the length of detention, the nature of the interrogation, and any use of physical punishment. Campaneria v. Reid, 891 F.2d 1014, 1020 (2d Cir. 1989). Overall, the voluntariness inquiry considers “whether a defendant's will was overborne” by the circumstances surrounding the giving of a confession. Dickerson v. United States, 530 U.S. 428, 434 (2000) (quoting Bustamonte, 412 U.S. at 223).
The facts established at the hearing demonstrate that defendant was given a Miranda warning prior to speaking with Agent Brostko and Zeithammel and that he waived his Miranda rights before making statements. Following his arrest on August 20, 2019, defendant was taken to the ATF field office, where he was placed in an interview room. Prior to interrogation, Agent Brostko read defendant a statement of Miranda rights from an ATF form. Defendant indicated he understood those rights and he signed the waiver section on the form. Although not definitive, defendant's signature on the form is strong proof of valid waiver. See Butler, 441 U.S. at 373 (“An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver.”); see also United States v. Taylor, 745 F.3d 15, 23 (2d Cir. 2014) (“In general, a suspect who reads, acknowledges, and signs an “advice of rights” form before making a statement has knowingly and voluntarily waived Miranda rights). Further, there is no evidence that agents used physical force, threats, or promises of any kind to convince defendant to speak with them. For the following reasons, the totality of the circumstances show that defendant's waiver of rights was, in fact, made knowingly and voluntarily.
*20 Defendant argues that defendant was not fully apprised of his Miranda rights because Agent Brostko did not read every word on the waiver form prior to defendant signing it and because defendant signed the form immediately after he was given it. This argument is without merit. The recorded evidence shows that Agent Brostko recited a complete Miranda warning wherein he conveyed to defendant all of his fundamental constitutional rights. See generally Duckworth v. Eagan, 492 U.S. 195, 201-03 (1989) (holding that Miranda warnings need not be in any exact form so long as they reasonably convey to a suspect his rights). Agent Brostko then offered a brief description of what waiver meant. More specifically, Agent Brostko explained that by signing the waiver form defendant would be acknowledging that he read the statement, that he was waiving his rights, and that he was willing to speak with the agents.[10] Agent Brostko did not read aloud the entire “Waiver” section of the form. In response, defendant quickly put his hand out to take the form, demonstrating his willingness to sign it. Whether it would have been wise for defendant to take more time to consider his rights, and the effect of waiving them, before signing does not render his decision involuntary under these circumstances. The Government's reliance on Colorado v. Connelly, 479 U.S. 157 (1986) is apt. There, the Supreme Court rejected a defendant's attempt to “establish a new constitutional right - the right of a criminal defendant to confess his crime only when totally rational and properly motivated.” 479 U.S. at 166. Here, defendant has not demonstrated a constitutional violation stemming from his own eagerness to waive his rights.
In determining voluntariness, the Court must also examine the characteristics of the defendant. Defendant submits that his personal characteristics, including a history of childhood abuse, problems with social interaction, and diagnoses of attention deficit disorder and oppositional defiance disorder, support a finding that his statements were involuntary. To the contrary, the video recorded interview and the testimony show that defendant had the mental capacity to understand that he had the right to remain silent or speak with an attorney, and that he had a choice about whether to waive those rights. See Male Juvenile, 121 F.3d at 38-40 (holding that a defendant with attentional and learning difficulties knowingly waived his Miranda rights where nothing in the evidence indicated he could not comprehend his rights or the consequences of abandoning them). Here, defendant is an adult of average intelligence. The recorded evidence shows that, throughout the interview, he was lucid, coherent, and articulate. He asked appropriate questions and was appropriately responsive to all questions asked of him. The interviewing agents testified that he appeared to understand what was occurring and that they were unaware the defendant had any mental or health impairments. He does not allege that he was under the influence of drugs or alcohol. At one point during the interview, defendant referenced colleges that he had attended in the past. Further, defendant appeared to lie to agents about his whereabouts on the day of Jalovick's murder and then later altered his story when confronted with contradictory facts. This is indicative of savvy decision-making under the circumstances and does not evince a defendant whose will was overborne. Defendant's mental health and personal characteristics, viewed within the totality of the circumstances, do not support a conclusion that his statements were involuntary.[11]
*21 Further, the conditions of interrogation were not coercive. One of defendant's legs was shackled to the wall during the interview, but he was not handcuffed. This fact is not determinative because being handcuffed or shackled during interrogation does not create a coercive environment. See, e.g., United States v. Stroud, 62 Fed. Appx. 886, 890 (10th Cir. 2003); Shriner v. Wainwright, 715 F.2d 1452, 1456 (11th Cir. 1983); United States v. Ogden, 572 F.2d 501, 502 (5th Cir. 1978) (“The fact that defendant was wearing handcuffs does not indicate or even suggest that he was coerced.”). The interrogation lasted under two hours and was far from the type of prolonged questioning or deprivation found to be unconstitutional. See, e.g., Scully, 850 F.2d at 902 (interrogation lasting “just over two hours” was not coercive); United States v. Guarno, 819 F.2d 28, 31 (2d Cir. 1987) (interrogation lasting approximately two and half hours was not coercive). During this time defendant was provided a drink and given the opportunity to use a bathroom and to smoke a cigarette. Further, no physical punishment was used. The Court rejects defendant's assertion that his arrest in front of his family members is relevant to the conditions of the interrogation or has a meaningful effect on the totality of circumstance analysis.
Lastly, the conduct of law enforcement officials was lawful. Defendant submits that he felt coerced into discussing the case because agents repeatedly mentioned his mother and young son. Indeed, Agent Zeithammel admitted that he typically mentions a suspect's mother to encourage truthfulness during interviews. Notably, however, neither agent made threats or insinuations regarding defendant's family and, thus, these were far from coercive interrogation measures. Placing moral pressure on a defendant does not make a confession involuntary. See Connelly, 479 U.S. at 170 (“The First Amendment privilege is not concerned ‘with moral and psychological pressures to confess emanating from other sources other than official coercion.’ ”) (internal citation omitted). Defendant further argues that the agents intended to mislead Payne by telling him they just wanted to talk to him, when, in truth, they had a warrant for his arrest and suspected he was involved in a homicide. However, the use of “half-truths” does not automatically render a defendant's statement involuntary. See United States v. Anderson, 929 F.2d 96, 99 (2d Cir. 1991) (stating that police conduct that is “false, misleading, or intended to trick or cajole the defendant into confessing” does not necessarily render the confession involuntary). In fact, the record is devoid of evidence showing any coercion, deception, inducement, or other illegality on the part of law enforcement.
Accordingly, based on the totality of the circumstances described above, the Court finds that defendant knowingly, intelligently, and voluntarily relinquished his Miranda rights. It is thus recommended that defendant's motion to suppress his custodial statements be denied.
Defendant further moves to suppress statements he made to an unknown jailhouse informant. (Dkt. No. 223, ¶¶ 68-71). Defendant submits that the nature and timing of any such statements have not been disclosed by the Government under Brady or Rule 16 discovery and he seeks an evidentiary hearing to determine the nature of the witness's cooperation. The Government confirms that the defendant allegedly made a confession to a jailhouse witness in Summer 2019. (Dkt. No. 236, pg. 32). The Government declines to disclose this witness statement in advance of the pretrial order of the District Court. (Id.). This Court previously denied defendant's request for early disclosure of witness statements. (Dkt. No. 150, pg. 8-9). Moreover, the Government submits that defendant made the statement to this witness several months before the witness approached law enforcement about it. Under the seminal case of Massiah v. United States, 377 U.S. 201 (1964), there is no basis to suppress a voluntary statement made to a private individual unless that individual was acting as a government agent with intent to “deliberately elicit” incriminating statements from the accused. See United States v. Stevens, 83 F.3d 60, 64 (2d Cir. 1996). “The Massiah rule covers only those statements obtained as a result of an intentional effort on the part of the government, so information gotten before the inmates became agents/informants is not protected by the rule.” Id. Accordingly, it is recommended that defendant's motion to suppress statements made to a jailhouse informant be denied.
MOTIONS TO DISMISS
*22 Defendant moves to dismiss Counts 8, 9, 10 and 11 of the Second Superseding Indictment based on alleged facial insufficiency. (Dkt. No. 223, ¶¶ 8-38). These counts charge defendants Payne and Hay with Conspiracy to Murder a Federal Informant, Murder of a Federal Informant, Conspiracy to Retaliate Against a Federal Informant, and Retaliating Against a Federal Informant. Defendant asserts that the Indictment is facially insufficient for (1) failing to plead a sufficient factual basis for the charges, and (2) failing to plead a sufficient jurisdictional nexus. The Government opposes the motion and contends that the Indictment is sufficient as to each of these counts. (Dkt. No. 236, pgs. 4-14).
A party may raise by pretrial motion any defense, objection, or request that the court determine without a trial on the merits. Fed. R. Crim P. 12(b)(1). A motion to dismiss an indictment must meet a high standard. United States v. Lazore, 90 F. Supp. 2d 202, 203 (N.D.N.Y. 2000). The sufficiency of the evidence is not appropriately addressed on a pretrial motion to dismiss an indictment. United States v. Alfonso, 143 F.3d 772, 777 (2d Cir. 1998). In addressing a motion to dismiss, the Court must accept the facts alleged as true and determine only whether the indictment is valid “on its face.” See Costello v. United States, 350 U.S. 359, 363 (1956).
The Federal Rules of Criminal Procedure require only that an indictment should be “a plain, concise, and definite written statement of the essential facts constituting the offense charged [...].” Fed. R. Crim. P. 7(c)(1). An indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Hamling v. United States, 418 U.S. 87, 117 (1974). The Second Circuit has repeatedly confirmed that “an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.” United States v. Stavroulakis, 952 F.2d 686, 693 (2d Cir. 1992) (quoting United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir. 1975)). An indictment must also “be read to include facts which are necessarily implied by the specific allegations made.” Id. (quoting United States v. Silverman, 430 F.2d 106, 111 (2d Cir. 1970)). Although the defendant is entitled to a plain concise statement of the essential facts constituting the offenses charged, the indictment need not provide him with the evidentiary details by which the government plans to establish his guilt. United States v. Gordon, 780 F.2d 1165, 1172 (5th Cir. 1986). However, where the definition of an offense includes generic terms, the indictment “must descend to particulars” of the offense charged. See United States v. Pirro, 212 F.3d 86. 93 (2d Cir. 2000).
The statutory violations charged here involve obstruction of justice in the form of witness tampering and retaliation. Count 8 of the Indictment charges that defendants Hay and Payne conspired to murder an informant, namely Joshua Jalovick, with intent to prevent his attendance and testimony at an official proceeding and to prevent him from communicating with federal officers about federal drug trafficking and firearms offenses. Count 9 charges that defendants murdered Jalovick for the above reasons. Count 10 charges that defendants conspired to retaliate against Jalovick for providing information to a federal law enforcement officer related to the commission and possible commission of federal drug trafficking and firearms offenses. Count 11 charges that defendant retaliated against Jalovick for the above reasons.
*23 Section 1512(a)(1)(A) and 1512(a)(1)(C) of Title 18 of the United States Code provides:
[w]hoever kills or attempts to kill another person, with intent to (A) prevent the attendance or testimony of any period in an official proceeding; [...] or (C) prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense [...] shall be [guilty of a crime].
Similarly, Section 1512(k) makes it unlawful for anyone to conspire to commit any offense under Section 1512 of the law.
Section 1513 proscribes retaliation against a witness, victim, or informant:
[w]hoever kills or attempts to kill another person with intent to retaliate against any person for (A) the attendance of a witness or party at an official proceeding, or any testimony given or any record, document, or other object produced by a witness in an official proceeding; or (B) providing to a law enforcement officer any information relating to the commission or possible commission of a Federal offense [...] shall be [guilty of a crime].
Similarly, Section 1513(f) makes it unlawful for anyone to conspire to commit any offense under Section 1513 of the law.
Here, Counts 8 through 11 of the Indictment plainly meet the Rule 7 standard. Each count contains the elements of the offenses charged, informs defendant of the nature of the charges against him, and allows defendant to defend against the charges and “plead an acquittal or conviction in bar of future prosecutions for the same offense.” See Hamling, supra. Further, the Indictment identifies the individual who defendants are accused of killing and sets forth the time and place each of the offenses allegedly occurred. Accordingly, the Indictment is sufficient on its face.
Defendant argues that Counts 8 through 11 fail to provide “particulars” in their use of the terms “official proceeding” and “law enforcement officer.” He submits that it lacks the required factual basis because the Government has not specified the nature of the proceedings or the law enforcement entity referenced. Defendant cites United States v. Ring, 628 F. Supp. 2d 195 (D.D.C. 2009) and United States v. Triumph Capital Group, Inc., 260 F. Supp. 2d 470, 472 (D. Conn. 2003) for the need to provide such particularities. However, neither case stands for the proposition that an indictment must further specify “official proceeding” or “law enforcement officer” under Section 1512 or 1513. In fact, both “official proceeding” and “law enforcement officer” are terms defined by law under 18 U.S.C. § 1515(a)(1) and (4), and here the Indictment specifies that the charges relate to Joshua Jalovick, his communications with federal law enforcement officers about federal offenses, and his possible testimony at an official proceeding. There is no defect in this regard. See United States v. Mann, 701 F.3d 274, 287-88 (8th Cir. 2012) (rejecting argument that indictment under 18 U.S.C. § 1512(c)(2) was defective based on lack of proper notice of the charge against defendant where it alleged that defendants “did conspire with each other to corruptly obstruct, influence, and impede an official proceeding”).[12] Further, the Government has provided discovery giving defendant additional details about these offenses. Most notably, defendant has received a copy of the ATF “Informant Agreement” signed by Jalovick, dated September 26, 2018, reflecting his agreement to provide information regarding certain criminal activity to ATF through Agent Paul Brostko, the controlling agent in the investigation.
*24 Next, defendant argues that the Indictment is subject to dismissal because it fails to plead a sufficient jurisdictional nexus as required under 18 U.S.C. §§ 1512 and 1513; namely that it does not allege that Joshua Jalovick was a federal informant and that defendants committed the alleged actions to prevent him from communicating with a federal law enforcement officer or judge, or to retaliate against him for providing information about a federal offense to a federal law enforcement officer.
To sustain a witness tampering charge under 18 U.S.C. § 1512, the Government must prove (1) a killing or attempted killing, (2) committed with a particular intent, namely, an intent (a) to “prevent” a “communication” (b) about “the commission or possible commission of a Federal offense” (c) to a federal “law enforcement officer or judge.” Fowler v. United States, 563 U.S. 668, 672 (2011). The Supreme Court has clarified that Government is not obligated to show that the defendant had any particular law enforcement officer or officers in mind when he acted, observing that, in fact, witness tampering occurs frequently, and most effectively, before the victim has engaged in any communication with officers. See id. at 673-74. However, the Government must show more than broad indefinite intent to prevent communications with law enforcement officers in general. Id. The Government must “show a reasonable likelihood that, had, e.g., the victim communicated with law enforcement officers, at least one relevant communication would have been made to a federal law enforcement officer.” Id. at 677 (emphasis in original). Further, to satisfy the “nexus requirement” applicable to Section 1512, the defendant's conduct must “have a relationship in time, causation, or logic with the judicial proceedings,” in other words, “the endeavor must have the natural and probable effect of interfering with the due administration of justice.” United States v. Reich, 479 F.3d 179, 185 (2d Cir. 2007) (quoting United States v. Aguilar, 515 U.S. 593, 599 (1995)). “If the defendant lacks knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct.” Aguilar, 515 U.S. at 599. Similarly, to sustain a witness retaliation charge under 18 U.S.C. § 1513, the Government must prove: “(1) the defendant engaged in conduct that caused or threatened a witness with bodily injury; (2) the defendant acted knowingly, with the specific intent to retaliate against the witness for information the witness divulged to law enforcement authorities about a federal offense; and (3), the officials to which the witness divulged information were federal agents.” United States v. Draper, 553 F.3d 174, 180 (2d Cir. 2009).
The parties agree that the prosecution is not required to prove that defendant knew Jalovick was a federal informant nor that he knew Jalovick would testify in a federal proceeding. See United States v. Escalera, 957 F.3d 122, 129 (2d Cir. 2020) (holding that a witness retaliation conviction under § 1513 does not require proof that the defendant knew of the federal nature of an official proceeding); United States v. Veliz, 800 F.3d 63, 73 (2d Cir. 2015) (explaining that while the statute requires a specific intent to interfere with the communication of information, there is no state of mind requirement with regard to whether the law enforcement officer is an officer of the federal government); United States v. Gonzalez, 922 F.2d 1044, 1054 (2d Cir. 1991) (“The prosecutor is not required to prove the defendant's state of mind with respect to the elements of the federal nature of the proceeding, the judge, agency, or law enforcement officer.”). The Government's obligation will be instead to prove that defendant intended to retaliate against Jalovick for his communications with law enforcement or that he intended to prevent Jalovick from testifying or communicating with law enforcement. The Government must also establish a “jurisdictional nexus” for the offenses, meaning that it was reasonably likely under the circumstances that at least one relevant communication by Jalovick would have been made to a federal officer. See Fowler, 563 U.S. at 677-78.
*25 At this stage the Government is not required to present all evidence it will rely on at trial and the Court is careful not to allow defendant to “conflate pleading with proof.” Ring, 628 F. Supp. 2d at 223. Indeed, defendant presents no caselaw holding that the jurisdictional nexus requirement must be alleged in the indictment. To the contrary, “numerous courts have held that while the Government must prove a ‘nexus’ between the defendant's conduct and official proceeding at trial, the Indictment need not allege any such nexus.” United States v. Mix, CA-12-171, 2013 U.S. Dist. LEXIS 146848, at *48-49 (E.D. La. Oct. 10, 2013) (collecting cases). Nonetheless, the Government has outlined its trial theory and has offered evidence of the jurisdictional nexus in the form of the above-referenced ATF Informant Agreement. This agreement demonstrates that Joshua Jalovick was acting as a federal informant within approximately one year of his murder and supports a finding of “reasonable likelihood” that Jalovick would have made relevant communications to a federal officer.[13] Despite defendant's arguments, the Indictment is facially sufficient, and the Court sees no justification for its dismissal.
Defendant also moves to dismiss Counts 8, 9, 10 and 11 of the Indictment based on alleged insufficiency of the grand jury proceedings. (Dkt. No. 223, ¶¶ 39-45). He requests the disclosure of grand jury minutes to further determine whether he has a right to dismissal. (Id.). The Government opposes the motion and contends that, as the Indictment is valid and sufficient as to each of these counts, the secrecy of grand jury proceedings should not be disturbed. (Dkt. No. 236, pgs. 14-20).
The tradition in the United States is that proceedings before a grand jury shall generally remain secret. See In re Craig, 131 F.3d 99, 101 (2d Cir. 1997); see e.g., United States v. Haller, 837 F.2d 84, 87-88 (2d Cir. 1998) (“the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings”); United States v. Procter & Gamble, 356 U.S. 677, 682 (1958) (“The grand jury as a public institution serving the community might suffer if those testify today knew that the secrecy of their testimony would be lifted tomorrow). As a result, the burden is on the party seeking disclosure of grand jury minutes to show a “particularized need” that outweighs the need for secrecy. United States v. Moten, 582 F.2d 654, 662 (2d Cir. 1978) (“[a] review of grand jury minute is rarely permitted without specific factual allegations of governmental misconduct”); see also Fed. R. Crim P. 6(e)(3)(E)(ii) (a court may authorize disclosure of a grand jury matter “at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury”). “A party makes a showing of particularized need by proving ‘that the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.’ ” In re Grand Jury Subpoena, 103 F.3d 234, 239 (2d Cir. 1996) (internal quotation omitted). Because “a presumption of regularity attaches to grand jury proceedings,” United States v. Leung, 40 F.3d 577, 581 (2d Cir. 1994), “a defendant seeking disclosure of grand jury materials bears a heavy burden.” United States v. Schlegel, 687 F. Appx. 26, 30 (2d Cir. 2017) (summary order). An indictment, if valid on its face, may not be challenged on the ground that it is based on inadequate evidence. United States v. Casamento, 887 F.2d 1141, 1182 (2d Cir. 1989).
*26 As established above, Counts 8 through 11 of the Indictment are sufficient on their face and cannot be challenged on the ground that the charges are based on inadequate evidence. Casamento, 887 F.2d at 1182. Further, defendant has not shown “particularized need” for disclosure of the grand jury proceedings. Defendant posits that the grand jury may have received erroneous legal instructions on the retaliation charge because of alleged deficiencies with respect to Jalovick's status as a federal informant. However, allegations based on belief provide no reason to disregard the presumption of regularity of grand jury proceedings, and do not even warrant an in camera review of the grand jury minutes. United States v. Trochelmann, 98-CR-1276, 1999 U.S. Dist. LEXIS 6769, at *8 (S.D.N.Y. May 10, 1999). Further, mere speculation of irregularity is not sufficient to lift the veil of secrecy that surrounds grand jury proceedings. United States v. Abrams, 539 F. Supp. 378, 389 (S.D.N.Y. 1982). Defendant has not demonstrated a particular need for disclosure of grand jury instructions or other materials. See United States v. Smith, 105 F. Supp. 3d 255, 260-64 (denying request for disclosure of grand jury instructions where “[t]he only evidence offered by Defendant supporting the proposition that the grand jury was incorrectly instructed is the Indictment itself.”).
Lastly, defendant moves to dismiss the Indictment based on perjury of a witness and error of the grand jury. (Dkt. No. 227). This supplemental motion is based on three letters that counsel for defendant Hay received between May 31, 2020 and August 20, 2020 from an individual (“Witness 1”) who purports to be an eyewitness to Jalovick's murder and who claims that he cooperated with the Government and provided grand jury testimony in this case. In his letters to defense counsel, Witness 1 makes several allegations which defendant submit indicate that Witness 1 lied under oath about defendants Hay and Payne committing the charged murder. These statements include that Witness 1 “messed up in the beginning being selfish and went to the grand jury and said the story that thier [sic] pushing,” that he was under the influence of opiates and suffering withdrawal, that he “was hoping to avoid perjury charges,” and that in or about February 2012 he previously lied in a murder investigation. In the alternative to dismissal, defendant seeks disclosure of the grand jury transcript for Witness 1 (and related testimony) and notes or recording of Witness 1's post-arrest interview and pre-grand jury proffer. Defendant also requests a hearing regarding the issues raised. The Government opposes the motion in its entirety. (Dkt. No. 230).[14]
Courts are disinclined to interfere with grand jury proceedings. “The grand jury's sources of information are widely drawn, and the validity of an indictment is not affected by the character of the evidence considered. Thus, an indictment valid on its face is not subject to challenge on the ground that the grand jury acted on the basis of inadequate or incompetent evidence.” United States v. Calandra, 414 U.S. 338, 345-55 (1974) (citing Costello, 350 U.S. at 362)). A federal court can, in its supervisory authority, dismiss an indictment because of prosecutorial misconduct.[15] Bank of Nova Scotia v. United States, 487 U.S. 250, 254-56 (1988). However, where a claim of grand jury impropriety is made, the Supreme Court has held that dismissal of the indictment is appropriate only “if it is established that the violation substantially influenced the grand jury's decision to indict,” or if there is “grave doubt” that the decision to indict was free from the substantial influence of such violations. Id., at 256. A court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendant. Id., at 254. In addition, the “presumption of regularity” supports prosecutorial decisions and, “in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties.” United States v. Armstrong, 517 U.S. 456, 464 (1996).
*27 Here, defendant's allegations of witness perjury are an attack on the sufficiency of the evidence presented to the grand jury. Defendant has no right to have the Indictment dismissed merely because incompetent or inadequate evidence may have been presented to the grand jury. United States v. Schwartz, 464 F.2d 499, 511 (2d Cir. 1972). Defendant does put forth any specific allegations of prosecutorial misconduct or impropriety before the grand jury. There are no factual allegations suggesting that the Government condoned, or was even aware of, any possible perjury by Witness 1. Thus, defendant is not entitled to dismissal. See United States v. Mullen, 451 F. Supp. 2d 509, 549 (W.D.N.Y. 2006) (“Absent any reason to believe the Government solicited or knowingly condoned perjured testimony by the agent in connection with the testimony at issue, there is no basis to dismiss the Indictment”); United States v. Beatty, 94-CR-631, 1996 U.S. Dist. LEXIS 7848, at *6-7 (S.D.N.Y. June 7, 1996) (denying motion to dismiss where defendant speculatively asserted that an individual testified falsely before the grand jury and surmising from that that the Government must have known of that perjury and engaged in misconduct by presenting the perjured testimony). Even if error occurred, defendant has not shown that he suffered actual prejudice from any such error. See Bank of Nova Scotia, 487 U.S. at 254. Defendant is also not entitled to review grand jury minutes. See United States v. Torres, 901 F.2d 205, 233 (2d Cir. 1990) (“A review of grand jury minutes is rarely permitted without specific factual allegations of government misconduct.”); United States v. McCoy, 14-CR-6181, 2016 U.S. Dist. LEXIS 130603, at *24-25 (W.D.N.Y. Sept. 21, 2016) (holding that speculative assertions of presentation of perjured testimony or other prosecutorial misconduct do not entitle defendant to dismissal of the indictment or inspection of grand jury minutes).
In sum, it is recommended that defendant's motions to dismiss be denied for the foregoing reasons.
ADDITIONAL DISCOVERY
Defendant Payne has moved to join co-defendant Hay's supplemental motion to compel certain Rule 16 discovery. (Dkt. No. 298, ¶¶ 23-44). Defense counsel seeks an order compelling the Government to turn over all reports of testing and examination relative to DNA and firearms evidence. The Government responded with a representation that they have now turned over all discoverable material received from the relevant laboratories after analysis. (Dkt. No. 307, pgs. 1-3). In reply, defense counsel acknowledges receipt of these materials. (Dkt. No. 313). Accordingly, this motion is denied as moot.[16]
JOINDER OF MOTIONS
Defendant Payne has moved to join in the pre-trial motions of defendant Hay and their co-defendants. (Dkt. Nos. 223, ¶ 72; 303). The Government has opposed this request. The request for joinder is granted with the further directive and findings that the decisions made by this Court as to each defendant's motions shall also be deemed a finding and order as to all other defendants in this case, to the extent relevant. In the event an issue or motion applies only to one specific defendant, the defendant will be expressly named.
CONCLUSION
For the foregoing reasons, it is recommended that defendant's motions to suppress physical evidence, motions to suppress statements, and motions to dismiss be denied. (Dkt. Nos. 223; 227). It is further ordered that defendant's motion to compel additional Rule 16 discovery is denied as moot. (Dkt. No. 298).
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 recommendations portion of this Report, Recommendation, and Order must be filed with the Clerk of Court within fourteen days of service of this Report, Recommendation, and Order 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).
*28 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. See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988).
SO ORDERED.
Footnotes
The Court will separately issue a Report and Recommendation on the dispositive motions of co-defendant Hay. The various pretrial motions of the remaining co-defendants have been addressed by separate decisions and orders. See Dkt. Nos. 134; 159; 176.
Citations to “Tr.” refer to the transcript of the evidentiary hearing. (Dkt. No. 295).
A short while later, during the custodial interview of defendant, defendant again said that the phone was broken. (Tr. 173, 181; Govt. Exs. 6; 6A, pg. 64).
In his affidavit, defendant asserts that on the date of his arrest on August 20, 2019, he was residing for several days at his mother's home at 8917 North Davis Highway, Apt. 42 in Pensacola, Florida. (Id., at ¶ 3). Based upon this, the Government does not dispute that the defendant has established standing to challenge the seizure of his cell phone from the residence.
The Government also argues that law enforcement's entry into the home to arrest Payne was lawful in light of the Second Circuit's holding in United States v. Bohannon that “the subject of an arrest warrant has no greater right to privacy in another person's home than he has in his own and, therefore, that [a defendant's] seizure pursuant to a valid arrest warrant, and any search incident thereto, [is] reasonable if officers had reason to believe that he was present in [the third party's] home at the time of entry.” See 824 F.3d 242, 253 (2d Cir. 2016). Citing Steagald v. United States, 451 U.S. 204, 216 (1981), defendant argues that absent exigent circumstances or consent, law enforcement cannot legally search for the subject of an arrest warrant in the home of a third party, without first obtaining a search warrant. Here, the Court need not delineate between the two standards because the record is undisputed that defendant willingly emerged at the threshold of the apartment door and agents did not enter the home to effectuate his arrest. To this point, Agent Zeithammel testified that defendant “gradually moved his way to the front door and eventually came all the way to the front door,” at which time agents took him into custody. Indeed, defendant argues that he willingly stepped outside of the home and there was no reason for agents to enter the home to arrest him.
There is no evidence in the record that Ms. Munn's consent was involuntary or obtained by acquiescence to force. Ms. Munn testified that this was a cordial conversation with the agents, and she was treated with respect. She testified that agents never brandished their weapons.
The Government argues, in the alternative to consent, that one or more exigencies supported the propriety of the cell phone seizure. Having determined that the search and seizure were justified based on consent, the Court does not find it necessary to reach the Government's additional arguments relative to exigent circumstances. However, the Court notes that the Government's seizure of the cell phone, after it was produced by Ms. Munn to Agent Brostko, is also justified by the plain view doctrine. See generally Minnesota v. Dickerson, 508 U.S. 366, 375 (1993) (“[I]f police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.”). Here, Agent Brostko was lawfully inside the apartment based on consent, he was given access to the object by Ms. Munn, and, based on his experience and investigation of defendant, Brostko had probable cause to believe the cell phone contained or constituted evidence of defendant's drug trafficking or other suspected crimes. See United States v. Babilonia, 854 F.3d 163, 180-81 (2d Cir. 2017) (collecting cases where a suspect's involvement in a drug conspiracy or trafficking made the incriminating nature of a cell phone immediately apparent to law enforcement under plain view doctrine).
The Government also submits that the period of delay included the Labor Day holiday and weekends in between. See Martin, 157 F.3d at 54 (acknowledging case-specific factors, including that the Christmas holiday and weekends occurred during the delay, which supported the conclusion that the 11-day delay was not constitutionally infirm). These specific calendar events may be relevant to the analysis, but they do not reduce the total period of time to one that is per se constitutionally reasonable under the Smith.
Defendant argues that Agent Brostko “indicated that law enforcement lacked probable cause to apply for a search warrant for [defendant's] cell phone.” (Dkt. No. 309, pg. 18). However, the record does not support that claim. Agent Brostko testified that he did not have probable cause to believe this specific phone was present in the house prior to defendant's arrest. (Tr. 252-53). Agent Brostko's lack of knowledge regarding the location of phone is distinct from his probable cause to believe the phone contained evidence of a crime (after its location became known).
After giving the Miranda warning Agent Brostko stated, “so we want to talk to you about some things today obviously like we talked about in the car.” (Govt's Ex. 6A, pg. 3). Defendant argued that this indicates that some improper interrogation of defendant may have occurred. However, defendant does not assert that he was interrogated by law enforcement in the car or elsewhere prior to that time. Thus, there is no factual foundation for an argument on this point.
Even if there were evidence of defendant's diminished capacity or impaired mental state here, which there is not, such an impairment would not make a confession involuntary in the absence of coercive conduct by law enforcement. See United States v. Parker, 116 F. Supp. 3d 159, 173 (W.D.N.Y. 2015) (quoting Connelly, 479 U.S. at 164-65) (“Although a defendant's mental state is important in assessing the voluntariness of his statements, ‘a defendant's mental condition alone, by itself and apart from its relation to official coercion’ does not ‘dispose of the inquiry into constitutional voluntariness.’ ”).
Defendant relies on United States v. Murphy, 762 F.2d 1151 (1st Cir. 1986). There, the indictment charging defendants with threatening a witness in an official proceeding under 18 U.S.C. 1512(a)(1) but did not identify the proceedings which defendants were trying to influence. Id., at 1154. The Court found dismissal of the indictment necessary because “it did not adequately apprise the defendants of the charges against them.” Id., at 1155. Here, the indictment is more informative and withstands the motion to dismiss under Second Circuit precedent. It identifies the time and place of the alleged obstruction, the target of the obstruction (Jalovick), the mode of obstruction (murder), and the subject of the alleged communications to law enforcement (relating to distribution of controlled substances and unlawful firearms possession). Thus, although an official proceeding is not named, the indictment provides enough information “to alert the accused to the conduct specifically at issue.” See United States v. Schwimmer, 649 F. Supp. 544, 548 n.2 (E.D.N.Y. 1986).
The Court rejects defendant's argument that the ATF informant sign-up does not confirm that Jalovick was a federal informant in light of evidence that Jalovick also cooperated with state police, namely the Buffalo Police Department, in their investigation of Hay and Payne for drug crimes. The existence of the signed agreement between Jalovick and ATF rebuts this theory. See Draper, 553 F.3d at 180 (“where the witness initially had contacts with state authorities, the government must provide sufficient evidence that the witness's contact with law enforcement officials extended beyond her initial contacts with the local police, and involved federal officers”). Even where there is joint investigation by state and federal officers, the Second Circuit has recognized that “[Section] 1512’s reference to ‘law enforcement officer[s]’ encompasses not only the officials who investigate the case, but also those who prosecute it.” Dhinsa v. Krueger, 917 F.3d 70, 84 (2d Cir. 2019). Therefore, even if Buffalo Police were involved in joint investigation of the underlying crimes, the Government may still meet its burden “by showing that the victim was reasonably likely to have served as a witness in a federal criminal trial or otherwise communicated with a federal officer as the prosecution prepared its case.” Id.
The Government objects, in the first instance, to the timing of this supplemental motion, urging the Court to deny the motion based on counsel's failure to show good cause for not raising the issue in accordance with the Court's Scheduling Order. While acknowledging the Government's concerns about timeliness, the Court elects to address this motion on its merits.
The presumption that an indictment is supported by probable cause can be rebutted by allegations that it was obtained by fraud, perjury, the suppression or evidence, or other bad faith police conduct. Boyd v. City of New York, 336 F.3d 72, 77 (2d Cir. 2003).
It is noted that defendant reserves his right to seek preclusion from use at trial any other documents that the relevant laboratories may have in their possession but have not given to prosecutors, including any further forensic testing of shell cartridges or otherwise.