MEMORANDUM & ORDER
I. INTRODUCTION
This Memorandum and Order addresses Defendant Jamal Laurent’s Omnibus PreTrial Motion. (Not. of Mot. (Dkt. 171).) Laurent, along with Defendants Yassa Ashburn and Trevelle Merritt, are charged by a fourteen count indictment with numerous racketeering crimes committed in connection with their membership in the Six Tre Outlaw Gangsta Disciples Folk Nation (“Six Tre Folk Nation” or “Six Tre”), which was allegedly responsible for numerous acts of gang-related violence, including homicides, non-fatal shootings, and
The Indictment, filed on December 4, 2014, charges each defendant with racketeering (Count One) and racketeering conspiracy (Count Two), on the basis of twelve predicate Racketeering Acts (“RAs”),
In advance of the upcoming trial pursuant to this Indictment, Laurent has moved the court for an order: (1) suppressing historical cell-site- information and text messages obtained from two cellular telephones; (2) excluding testimonial statements made by Defendant Merritt, or in the alternative, severing his and Merritt’s trials; (3) suppressing statements made by Laurent during questioning by law enforcement while incarcerated at Rikers Island; (4) suppressing Laurent’s statements and conduct in response to attempts by law enforcement to execute DNA sample search and seizure warrants; (5) excluding mention of Laurent’s alias from the Government’s ease-in-chief and the Third Superseding Indictment; and (6) compelling the Government to provide discovery under Federal Rule of Criminal Procedure 16 and Brady v. Maryland,
II. MOTION TO SUPPRESS HISTORICAL CELL-SITE DATA
Laurent first moves to suppress certain historical mobile phone location (“cell-site”) data the Government has requested and received from cellular service providers. He argues that each request for information amounted to a search within the meaning of the Fourth Amendment, and as a result, the Government was required to first obtain a warrant supported by a showing of probable cause. (Omnibus Mot. at 6-7.) Because it did not, Laurent maintains, the cell-site data should be suppressed. (Id. at 7.) As the Government points out, however, the historical cell-site data was obtained pursuant to court orders authorized under both state and federal law. (Gov’t Mem. in Opp’n at 10.) Thus,even if each request constituted a Fourth Amendment search requiring a warrant, which the Government disputes, the exclusionary rule does not apply because law enforcement relied in good faith on both the constitutionality of the relevant statutes as well as the authorization provided by judicial officers. (Id. at 12-13.) Since the court agrees that the good faith exception to the exclusionary rule applies, regardless of whether the requests for historical cell-site data constituted Fourth Amendment searches, Laurent’s motion to suppress is DENIED-.
A. Background
Laurent’s motion concerns historical cell-site data pertaining to two cell phone numbers. First, an officer of the West Hartford Police Department (“WHPD”) • sought and obtained this data with respect to (917) 214^1017 (the “4017 phone”) in August 2010, in connection with an investigation into a June 2010 robbery at Lux Bond & Green, a jewelry store in West Hartford, Connecticut. Second, in April 2011, federal prosecutors in the Eastern District of New York sought and obtained cell-site data regarding (347) 455-6638 (the “6638 phone”) during the course of their investigation into the murder of Dasta James in Brooklyn, New York in 'January 2011. The following circumstances were involved in each request for cell-site data, respectively.
1. The Í017 Application and Order
According to the WHPD application for cell-site data, WHPD officers initially responded to a robbery at Lux Bond & Green on June 25, 2010. (Gov’t Mem. in Opp’n, Ex. A, Application and Ex Parte Order to Disclose Telephone or Internet Records (“4017 Application and Order”) (Dkt. 180-1) at l.)
Officer Puglielli subsequently learned that the NYPD and the Federal Bureau of Investigation (“FBI”) had been investigating a group of males in Brooklyn who were thought to be responsible for a series of jewelry store robberies similar to the one that took place at Lux Bond & Green on June 25, 2010. (Id.) These other robberies had taken place between May 2009 and August 2010 at jewelry stores that were located in New York, New Jersey, and Connecticut, and that sold high priced watches, including those manufactured by Patek Philippe. (Id.) One such theft took place on August 18, 2010, when three individuals robbed a jewelry store in Manhattan. (Id.) The suspects drove to the store in a stolen Nissan Maxima, used a sledgehammer to smash a glass window of the store, and stole an “undetermined amount of antique watches.” (Id.) One of the three suspects was apprehended and arrested by the NYPD later that day. (Id.) After receiving Miranda warnings, the suspect waived his rights and agreed to speak with law enforcement officers without the presence of counsel. (Id. at 5.) The suspect told officers, among other things, that the group had been responsible for these robberies and that they typically used another car to “take possession of the stolen jewelry and run interference if the police became involved.” (Id.) The suspect also explained that he had been recruited by another individual, whose nickname and telephone numbers the suspect provided. (Id.)
Based on this information, along with other details, Officer Puglielli filed an application for an ex parte court order pursuant to section 54-47aa of the General Statutes of Connecticut, seeking subscriber information, call logs, and cell-site data from the 4017 phone for the period from June 1, 2010 to August 18, 2010. • (Id. at 6.) On the application, Officer Puglielli indicated that he believed the foregoing constituted evidence that “a particular person participated or may have been knowing in the commission of the offense[s]” of first degree robbery and larceny. (Id.) On August 30, 2010, Connecticut Superior Court Judge Miaño granted the application, thereby finding that, “[t]he foregoing reasonable and articulable suspicion or exigent circumstances having been presented to and considered by the undersigned ... the undersigned (a) is satisfied therefrom that grounds exist for said application and (b) finds that said affidavit established grounds for the undersigned to issue [the ex parte] order.” (Id. at 1, 2.) Pursuant to the order, Judge Miaño required T-Mobile to provide “basic subscriber information” and “call-identifying information,” which included “dialing or signaling information that identifies the origin, direction, destination or termination of each communication generated or received by a subscriber or customer” for the 4017 phone as well as for two phone numbers provided by the suspect on August 18, 2010. (Id. at 1.) According to the Government, T-Mobile
2. The 6638 Application and Order
Whereas T-Mobile provided the 4017 phone records to the WHPD in response to a Connecticut state court order under section 54-47aa, the 6638 phone records were obtained by the federal government pursuant to section 2703 of the Stored Communications Act (“SCA”), 18 U.S.C. § 2703, in connection with an investigation conducted by the United States Attorney’s Office for the Eastern District of New York in April 2011. At that time, the FBI was investigating a murder that took place on January 28, 2011, at 47 McKeever Place, in Brooklyn, New York. The victim, who was later determined to be Dasta James, had been shot twice, once in the back of his head and once in his shoulder. (Gov’t Mem. in Opp’n at 7; id., Ex. B (“6638 Application and Order”) (Dkt. 180-2) at 3.) At the time of his death, James was found to be in possession of marijuana and approximately $1,960 in cash. (6638 Application and Order at 3.) Just over two months later, law enforcement officers interviewed a suspect — who was later identified as Defendant Trevelle Merritt — regarding his involvement in the James murder.
In the application for cell-site data, Assistant United States Attorney (“AUSA”) Zainab Ahmad explained that Laurent used the 6638 phone in furtherance of the murder of Dasta James on January 28, 2011. (Id. at 2.) According to AUSA Ahmad’s application, Merritt gave James’s phone number to Laurent, who called James in Merritt’s presence. (Id. at 4.) Merritt also stated that Laurent was using the 6638 phone at the time. (Id.) The application further indicated that toll records from the 6638 phone showed that Laurent called Merritt several times on January 28, 2011.
On this basis, the Government filed an application pursuant to the SCA, 18 U.S.C. § 2703(c) and (d), seeking historical cell-site information regarding the 6638 phone for the period from January 28, 2011, to 11 a.m. on the date the application was made, April 19, 2011. (Id. at 1, 6.) In support of the application, AUSA Ahmad submitted that the Government had offered “specific and articulable facts showing that there [were] reasonable grounds to believe the information sought [was] relevant and material to an ongoing criminal investigation.” (Id. at 3.) Magistrate Judge Viktor V. Po-horelsky granted the Government’s application that same day, finding that the Government had in fact “offered specific and articulable facts showing that there [were] reasonable grounds to believe that the historical cell-site information [was] relevant and material to an ongoing criminal investigation into possible violations of federal criminal laws, including racketeering, murder, robbery and conspiracy offenses in violation of 18 U.S.C. §§ 924(j), 1951(a), 1959, 1962(c) and 1962(d).” (Id. at 8.) According to the Government, while Magistrate Judge Pohorelsky ordered the cellular service provider — Metro PCS (id. at 7) — to produce historical cell-site data for the entire period requested, Metro PCS only provided this data for January 28, 2011. (Gov’t Mem. in Opp’n at 9.) Nevertheless, the Government eventually charged all three defendants with racketeering conspiracy in Count Two of the Indictment, which requires the Government to prove that each defendant, including Laurent, agreed that he or a co-eon-spirator would commit at least two acts of racketeering in the conduct of the affairs of the enterprise. (See Indictment ¶ 34.) Especially since the Government has indicated that it will introduce the cell-site evidence at trial (see, e.g., Gov’t Mem. in Opp’n at 24), one such act could be the attempted robbery and murder of Dasta James. (Id. at 21.)
B. Legal Standard
Laurent contends that the Government obtained this historical cell-site data in violation of the Fourth Amendment. (Omnibus Mot. at 2.) The Fourth Amendment guarantees that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. “A search conducted without a warrant is ‘per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’” United States v. Maynard,
In this context, the SCA provides a federal statutory framework for obtaining
As Laurent points out, this court has previously found that a request for prolonged historical cell-site records pursuant to § 2703 constitutes a search for the purpose of the Fourth Amendment, thus requiring the issuance of a warrant upon a showing of probable cause. See Historical Cell-Site Info,
This court then looked to the reasoning in Maynard,
C. Discussion
Laurent argues that here, as in Maynard and Historical Cell-Site Info, the Government’s collection of cell-site location data from both the 4017 and 6638 phones for an extended period of time constituted a warrantless search in violation of the Fourth Amendment, and that as a result, this evidence should be suppressed at trial. (Omnibus Mot. at 7.)
1. Standing
As the proponent of a motion to suppress, a defendant bears the burden of establishing that he has “standing” to challenge the search or seizure. Rakas v. Illinois,
As Laurent himself points out, T-Mobile has advised that Peter Laurent, Defendant’s father, is the customer associated with the 4017 phone (Omnibus Mot. at 3), and Metro PCS has disclosed that Peter Laurent was the subscriber for the 6638 phone as well (id. at 4). Moreover, Jamal Laurent told Connecticut law enforcement officers in December 2010 that “his own cell phone number was (646) 400-7110,” an account for which phone records have not been subpoenaed or produced. (Id. at 3 n. 4.) Nevertheless, he points out that according to the Government’s application with respect to the 6638 phone, Peter Laurent stated in an interview that “although the phone was registered to him, he typically provided his son ... with cell phones.” (Id. at 4 n. 6.) Consequently, Jamal Laurent asserts that “there is no question that [he] has standing to move to suppress the records” for both the 4017 and 6638 phones. (Id.) In further support of his
Nevertheless, this court has previously noted that case law in the Second Circuit is “sparse” on the question of whether a defendant who used a cell phone subscribed to another person has standing to move to suppress information gathered from that phone. See Herron,
For example, one who, with permission of the owner, is in possession of and control over a residence that is not his own home, and who can exclude others from it, can have a legally sufficient privacy interest to establish Fourth Amendment standing to challenge a search of such premises. Id. Similarly, a person who possesses personal property belonging to another and who has the right to exclude third persons from possession of that property has an interest that is similarly protected. United States v. Ochs,
2. Fourth Amendment Search
Even if Laurent has a legally sufficient privacy interest in his father’s cell phones, the next issue is whether the Government’s actions constituted a Fourth Amendment search subject to the warrant and probable cause requirement.
On this basis, Laurent concludes that this court’s decision in Historical Cell-Site Info is firmly supported by a majority of the Supreme Court, and that as a result, the court should conclude here that the Government violated Laurent’s reasonable expectation of privacy by obtaining his cell-site data pursuant to § 2703. (Def. Reply Mem. at 7-8.) In response, the Government cautions the court against deciding this motion based on the anticipated evolution of Supreme Court decisions. (Gov’t Mem. in Opp’n at 19 (citing Agostini v. Felton,
In Maynard, which the Supreme Court affirmed on different grounds, the D.C. Circuit held that constant GPS surveillance of a suspect for four weeks constituted a Fourth Amendment search. Maynard,
3. Good Faith Exception
As the Supreme Court has explained, “[t]he fact that a Fourth Amendment violation occurred ... does not necessarily mean that the exclusionary rule applies.” Herring v. United States,
Laurent argues that the good faith exception should not apply to the Government’s conduct in this case. (Omnibus Mot. at 20.) In support, Laurent points out that before the Government applied for historical cell-site data with respect to the 6638 phone, Eastern District of New York Magistrate Judge James Orenstein had issued two decisions rejecting similar applications under § 2703(d) on the basis of the targets’ Fourth Amendment right to privacy. See In re Application of United States
This is not enough to render the Government’s reliance on court orders issued under the SCA and section 54-47aa objectively unreasonable. Laurent does not argue that either statute was “clearly unconstitutional,” or that Congress or the Connecticut legislature “wholly abandoned [their] responsibility to enact constitutional laws.” Krull,
a. The SCA and the 6638 Phone Records
With respect to the 6638 records, at the time of the authorization order, the only court of appeals to address the constitutionality of the SCA had concluded that it complied with Fourth Amendment. See
Moreover, as the Government points out, Magistrate Judge Orenstein’s August 2010 order was actually reversed by District Judge Roslynn R. Mauskopf in November 2010 — before the Government’s application was made in this case. See Order, In re Application of United States, No. 10-MC-550 (E.D.N.Y. Nov. 29, 2010), ECF No. 11. Thus, at the time Magistrate Judge Pohorelsky issued his order, it was objectively reasonable for prosecutors to have relied upon § 2703 to obtain historical cell-site data based on an application alleging only “specific and articulable facts.” 18 U.S.C. § 2703(d). While a few district courts may have just begun to challenge the constitutionality of the SCA in this context, it cannot be said that the Government had knowledge that this search was unconstitutional when it was approved by Magistrate Judge Pohorelsky in April 2011, and where similar requests had been routinely granted by judges in this district and elsewhere. Therefore, because the Government is entitled to the good faith exception, the court will not apply the exclusionary rule to the 6638 phone records obtained pursuant to the § 2703 order. See Davis,
b. Section 5k~U7aa and the 1017 Phone Records
Significantly, Laurent has not set forth any argument with respect to the constitutionality of the order authorizing the WHPD to obtain cell-site records for the 4017 phone. Nor has- the court been able to identify any Connecticut or federal court decision holding that section 54-47aa violates the Fourth Amendment in the context of a request for historical cell-site data. Cf. O’Meara v. Terra, No. 10-CV-1424 (MRK),
Thus, both Connecticut and federal law enforcement officials, viewed objectively, acted reasonably in relying on judicially authorized search orders pursuant to the SCA and section 54-47aa. As a result, the applications for and collection of historical cell-site records with respect to both 6638 and 4017 phones were completed in good faith. Accordingly, Laurent’s Motion to Suppress is DENIED.
III. MOTION TO EXCLUDE MERRITT’S STATEMENTS
Laurent has also moved to exclude statements made by Defendant Trevelle Merritt to law enforcement officials regarding the murder of Dasta James. (Omnibus Mot. at 25.) Laurent argues that unless Merritt testifies at trial, these statements must be excluded pursuant to Crawford v. Washington,
A. Background
According to the Government, on or about January'28, 2011, Defendants Merritt and Laurent conspired to rob Dasta James, who was selling marijuana at an apartment building in Brooklyn. (Gov’t Mem. in Opp’n at 20.) In his statements to law enforcement officers, Merritt said that he initially called James to purchase marijuana that evening. (Omnibus Mot. at 23.) Merritt said that he then met Laurent at the Ebbets Field housing projects, where he told Laurent he was planning to purchase marijuana before heading to downtown Brooklyn. (Id.) When Laurent asked Merritt who he was purchasing marijuana from, Merritt identified James, and Laurent asked Merritt for James’s cell phone number. (Id.) Laurent then called James, but Merritt was unsure if Laurent and James spoke. (Id.)
Merritt claims that while he was in the stairwell he heard Laurent and James arguing, and when he returned to the hallway, Merritt saw Laurent and James wrestling and throwing punches at each other. (Id.) Merritt told law enforcement officers that during this fight, he saw Laurent pull out a silver, long-barreled handgun and shoot James once “in the torso or upper body area.” (Id.) Merritt then saw James fall to the ground, at which point Merritt ran down the stairwell to the lobby. (Id.) Merritt told law enforcement that while he was running down the stairs, he heard approximately five or six shots, and then ran through the lobby, into the garage and back to his apartment. (Id.) According to the Government, however, Merritt and Laurent fled through the building together and then split up once they were outside. (Gov’t Mem. in Opp’n at 20-21; see also id., Ex. C, Proposed Amendments to Statements by Trevelle Merritt (“Proposed Redacted Statements”) (Dkt. 180-3) at 2.) In support, the Government has provided defense counsel with surveillance video of the garage, “which shows two males leaving the apartment building just after the time of the homicide.” (Omnibus Mot. at 24.) The Government also indicates that James was shot twice, once in the left shoulder and once in the back of his head, and that James died as a result of his injuries. (Gov’t Mem. in Opp’n at 20-21.)
On April 6, 2011, Merritt was arrested and interviewed by NYPD detectives regarding James’s murder. (Id. at 21.) Over the next several days, Merritt made five separate statements to law enforcement officials: (1) an oral statement to an NYPD detective at 9:15 p.m. on April 6; (2) a handwritten statement, signed at 11:15 p.m. that same night; (3) another handwritten statement, signed at 12:45 a.m. on April 7; (4) an oral statement to a Kings County Assistant District Attorney at 1:19 PM on April 7; and (5) an oral statement to FBI agents on April 11. (Id. at 22.) Merritt was ultimately charged in connection with James’s murder in Racketeering Act 12 of Counts One and Two of the Indictment, as well as in Count Eleven (Hobbs Act robbery conspiracy), Count Twelve (attempted Hobbs Act robbery), Count Thirteen (unlawful use of a firearm), and Count Fourteen (causing death through use of a firearm). (Indictment ¶¶ 28-31, 47-50.)
At trial, the Government “anticipates offering to admit some or all of Merritt’s statements,” by eliciting testimony from the interviewing detectives and agents. (Gov’t Mem. in Opp’n at 22.) As Laurent concedes, he is not named in the charges specifically related to these crimes. (See Omnibus Mot. at 26.) Nevertheless, all three defendants are charged with racketeering conspiracy in Count Two, which will require the Government to prove that each defendant, including Laurent, agreed that he or a co-conspirator would commit at least two acts of racketeering in the conduct of the affairs of the enterprise. (See Indictment ¶ 34.) As the Government admits, one such act could be the attempted robbery and murder of Dasta James.
B. Legal Standard
“The crux of [the Confrontation Clause] is that the government cannot introduce at trial statements containing accusations against the defendant unless the accuser takes the stand against the defendant and is available for cross examination.” United States v. Taylor,
Ultimately, as the Second Circuit explained in Tutino, and confirmed in Jass, “a Bruton challenge to a redacted confession [is] properly analyzed by reference to two questions: (1) did the redacted statement give any ‘indication to the jury that the original statement contained actual names,’ and (2) did the ‘statement standing alone ... otherwise connect co-defendants to the crimes.’” Jass,
The critical inquiry is ... not whether a jury might infer from other facts (whether evidence admitted at trial or circumstances such as the number of defendants on trial) that a declarant’s neutral allusion to a confederate might have referenced the defendant. It is whether the neutral allusion sufficiently conceals the fact of explicit identification to eliminate the overwhelming probability that a jury hearing the confession at a joint trial will not be able to follow an appropriate limiting instruction.
Id. at 61. Accordingly, these cases “do not construe the Confrontation Clause to demand further that a confession be redacted so as to permit no incriminating inference against the non-declarant defendant. To the contrary, the law assumes that even a redacted statement will prejudice a defendant if it is considered against him.” Id. at 60-61 (emphasis in original). While “the line between testimony that falls within Bruton’s scope and that which does not is often difficult to discern,” United States v. Lung Fong Chen,
C. Discussion
The Government maintains that Laurent’s Sixth Amendment rights will be protected by the following measures. First, the Government has proposed making a set of substitutions for all references to Laurent in Merritt’s statements. (See Proposed Redacted Statements.) The vast majority of these substitutions consist of
In response, Laurent maintains that the Government’s proposed redactions will not cure the prejudicial effect of Merritt’s statements, and that a limiting instruction would not sufficiently protect his Sixth Amendment rights. (Def. Reply Mem. at 8.) First, Laurent argues that the proposed redactions are insufficient to comply with requirement that the statements be redacted to “eliminate not only the defendant’s name, but any reference to his or her existence.” (Id. at 9 (emphasis in original) (quoting Richardson,
1. Adequacy of Proposed Redactions
In support of his first argument, Laurent points to the Second Circuit’s instruction in Jass, “urg[ingj district courts, wherever possible, to eliminate completely ... any mention of a non-declarant defendant’s existence.” (Def. Reply Mem. at 10 (quoting United States v. Defreitas,
For example, in Jass itself, the court permitted substitution of “another person” where “complete redaction would have changed the substance” of the confession “because acknowledgement of a confederate was critical to proving that [the declar-ant’s admission was to conspiratorial, as well as substantive” crimes, both of which had been charged in the indictment. Jass,
As a result, neutral pronoun substitution is appropriate, so long as the substituted language does not otherwise violate Laurent’s Sixth Amendment right to confrontation. The question then becomes whether the redacted statements manifest “ ‘obvious indications of alteration,’ or' otherwise signal to the jury that the statements had originally ‘contained actual names.’” Jass,
Here, the Government’s proposed redacted statements do not manifest obvious signs of alteration, or otherwise signal to the jury that they originally contained actual names. See Jass,
While this language is somewhat cumbersome, with minor changes, these substitutions do not rise to the level of recurring awkward circumlocutions that contributed to the Second Circuit’s holding in Taylor.
2. Redacted Statements’ Connection to Laurent
The second inquiry is whether the redacted statements, “standing alone,” otherwise connect Laurent to the crimes. See id. (quoting Tutino,
As the Government points out, the “critical inquiry is ... not whether a jury might infer from other facts (whether evidence admitted at trial or circumstances such as the number of defendants on trial) that a declarant’s neutral allusion to a confederate might have referenced the defendant.”
Nothing in Merritt’s redacted statements, viewed in isolation, is facially incriminating to Laurent in particular. See Richardson,
In Gray itself, the Supreme Court suggested that the identified Confrontation Clause violation could have been avoided by substituting “a few other guys,” a phrase suggesting male confederates, for the names of the defendants. Gray v. Maryland,523 U.S. at 196 ,118 S.Ct. 1151 . By contrast, Gray explained that redactions “that use shortened first names, nicknames, [or] descriptions as unique as the ‘red-haired, bearded, one-eyed man-with-a-limp’ ” would fall within Bruton’s protection. Id. at 195,118 S.Ct. 1151 . So too would a description of a defendant as “this white guy” when coupled with particulars as to “age, height, and weight.” Harrington v. California,395 U.S. 250 , 253,89 S.Ct. 1726 ,23 L.Ed.2d 284 (1969); see also United States v. Hoover,246 F.3d 1054 , 1059 (7th Cir.2001) (holding that replacement of defendants’ names with terms “incarcerated leader” and “unincarcerated leader” provided jury with “aliases based on their occupations” that “no more concealed their identities” than would “the substitution of ‘Mark Twain’ for ‘Samuel Clemens’ ”). A simple gender reference, however, lacks the specificity necessary to permit a jury to draw an immediate inference that the defendant is the person identified in the confession.
Jass,
Thus, for the same reason, it is also irrelevant that Laurent and Ashburn are the only other defendants on trial. In Jass, both defendants were charged with (1) conspiracy to transport minors in interstate commerce with the intent of (i) having a minor engage in illegal sexual activity and (ii) producing a visual depiction of a minor engaged in such activity; (2) actual transportation of a minor in interstate commerce with the intent to engage in criminal sexual activity; and (3) sexual exploitation of a child.
The Second Circuit rejected this argument, concluding that the jury “would have had to refer to other trial evidence to link [her] to the redacted statement.” Id. It reasoned:
Where a “blank” in a redacted confession indicated that the declarant specifically identified a confederate, Gray observed that “a more sophisticated juror, wondering if the blank refers to someone [other than the defendant], might also wonder how, if it did, the prosecutor could argue the confession is reliable, for the prosecutor, after all, has been arguing that [the defendant], not someone else, helped [the declarant] commit the crime.” [523 U.S.] at 193,118 S.Ct. 1151 .
Jurors in [the instant] case, however, could not have drawn a similar inference from [the declarantes redacted confession because prosecutors employed neutral substitutions that plausibly indicated only that [the declarant] acknowledged having a confederate, but that did not suggest that he had made a specific identification. When a confession is properly redacted in this way, a prosecutor may argue that the confession is reliable without tempting a “more sophisticated juror” to make a further inference as to the reliability of a specific identification made in the confession.
Id. at 63 n. 8. The court went on to note that “at most ... a juror might have inferred from [the declarantes confession that the prosecutor believed [the co-defendant] to be the ‘other person’ that [the
D. Consistency of Government Charging Theory
Laurent nonetheless argues that, as a practical matter, the Government should not be permitted, on the one hand, to introduce Merritt’s statements that the “other guy” — Laurent—actually shot Das-ta James, but on the other hand, argue to the jury that Merritt is the one who committed the crimes. (Def. Reply Mem. at 12 (“[T]he Government is simultaneously crediting Mr. Merritt’s statement as to Mr. Laurent’s alleged role and not crediting the statement against Mr. Merritt himself, as evidenced by the Government’s charging decision.”).) Regardless of what the Government’s actual theory is with respect to the roles played by Merritt and Laurent in the robbery and murder of Dasta James, Laurent is incorrect that the Government’s charging decision is necessarily inconsistent with Merritt’s statements, taken at face value.
Merritt is charged with Hobbs Act robbery conspiracy (Count Eleven) in violation of 18 U.S.C. § 1951(a), which requires, inter alia, that the Government prove he agreed to rob Dasta James (see Indictment ¶ 47); this is consistent with Merritt’s confession that Laurent told Merritt that he “wanted to book” James, and that Merritt agreed “to get [his] weed and stay out of it.” (Proposed Redacted Statements at 4.) Merritt is also charged with attempted Hobbs Act robbery (Count Twelve) (see Indictment ¶ 48), which requires the Government to prove that Merritt took a “substantial step” toward his and Laurent’s illegal agreement to rob James. See United States v. Cain,
Finally, Merritt is charged with causing James’s death through the use of a firearm (Count Fourteen) in violation of 18 U.S.C. § 924(j), which requires proof of a “murder,” as defined by 18 U.S.C. § 1111(a). (See Indictment ¶ 50.) Under § 1111(a),
E. Conclusion
The court therefore concludes that as slightly modified by the court, the Government’s proposed redacted statements do not indicate to the jury that Merritt’s original statements contained actual names; nor do the statements, standing alone, otherwise connect Laurent to the crimes. See Jass,
,IV. MOTION FOR SEVERANCE
Laurent also argues that if Merritt’s .statements are not excluded, Laurent’s and Merritt’s trials should be severed because he and Merritt are presenting antagonistic defenses. (Omnibus Mot. at 30-32.) By a letter dated October 2, 2014, Merritt also moves for a severance on similar grounds. (Dkt. 191.) The Government argues that severance is not warranted
A. Legal Standard
Federal Rule of Criminal Procedure 8 provides that an indictment “may charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses.” Fed.R.Crim.P. 8(b) (noting further that, “[a]ll defendants need not be charged in each count”). As the Supreme Court has observed, “[t]here is a preference in the federal system for joint trials of defendants who are indicted together.” Zafiro v. United States,
Under Federal Rule of Criminal Procedure 14, however, if “a consolidation for trial appears to prejudice a defendant ... the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires.” Fed.R.Crim.P. 14(a). . “In order to succeed on a motion for severance, a defendant must show that the prejudice from a joint trial is ‘sufficiently severe to outweigh the judicial economy that would be realized by avoiding multiple lengthy trials.’” United States v. Defreitas,
Accordingly, courts • have held that “[w]hen defendants are properly joined under Rule 8, a severance, pursuant to [Rule] 14, should only be granted if there is a serious risk that a joint trial would either compromise a specific trial right of one of the defendants or prevent the jury from
B. Discussion
Joinder of these defendants, who are alleged to have participated in the same racketeering conspiracy, was clearly proper under Rule 8(b). See United States v. Nerlinger,
With respect to Laurent’s first argument, courts have long held that “the fact that evidence may be admissible against one defendant but not another does not necessarily require a severance.” Spinelli,
Laurent’s second argument, in which Merritt joins, is also unavailing. As “[m]u-tually antagonistic defenses are not prejudicial per se,” United States v. Haynes,
V. MOTION TO SUPPRESS LAURENT’S STATEMENTS TO LAW ENFORCEMENT
Next, Laurent moves to suppress statements that he made to law enforcement officers regarding the robbery of the Lux Bond & Green jewelry store in West Hartford, Connecticut.
A. Background
On December 2, 2010, Laurent was interviewed by law enforcement officers at a New York State correctional facility on Rikers Island, where he was incarcerated pending resolution of state weapons possession and reckless endangerment charges. (Omnibus Mot., Ex. B, WHPD Case/Incident Report (“Case Report”) (Dkt. 172-2) at 2.) The interview, which began at approximately 2:46 p.m., took place in an interview room at the Rikers Island Intelligence Unit, where Laurent was questioned by FBI Special Agent Christopher Campbell, NYPD Detective William Van Pelt, WHPD Detective Mark Puglielli, and a WHPD Officer Juda. (Id.) Initially, Detective Van Pelt spoke alone with Laurent. (Id.) The Case Report, which was written and signed by Detective Puglielli, states that Detective Van Pelt placed a bottle of water in front of Laurent and explained that the interview was being conducted in connection with an investigation in West Hartford regarding the theft of watches from Lux Bond & Green on June 25, 2010.
After Van Pelt and Laurent spoke for a few minutes, Special Agent Campbell, Detective Puglielli, and Officer Juda entered the room, introduced themselves, and reiterated the purpose of their visit. (Id.) Detective Puglielli then advised Laurent of his constitutional rights, using the WHPD Miranda Rights Waiver Form (the “Form”). (Id. at 2, 5.) According to Detective Puglielli, Laurent stated that he understood his rights and that he had been advised of these rights by law enforcement officers on a prior occasion. (Id. at 2.) The Form, which was completed at approximately 2:59 p.m., indicates that Laurent received a General Education Diploma (“GED”) in 2009, and that Laurent could read and write in English. (Id. at 5.) Laurent refused, however, to sign the portion of the Form indicating that he waived his Miranda rights. (Id. at 2, 5.) Nonetheless, the interview continued, as Laurent proceeded to answer questions.
Laurent “denied any involvement” with the Lux Bond & Green theft, and stated that he did not know anyone involved in thefts of high-priced watches in general. (Id. at 3.) He also indicated that until his arrest in July 2010, he had been working as a custodian from 6:00 a.m. to 2:00 p.m.
Laurent then told the interviewers that “he was getting annoyed with the questions,” and asked if he could leave. (Id. at 3-4.) Detective Puglielli told Laurent that “he could leave at any time.” (Id. at 4.) Laurent then stated that if he met with the interviewers again he would have his attorney with him. (Id.) The interview ended at approximately 3:34 p.m., roughly 48 minutes after it began. According to the Government, Laurent was not handcuffed during the interview and the interviewers were not armed. (Gov’t Mem. in Opp’n at 29.)
B. Discussion
The Fifth Amendment provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const, amend. V. “To give force to the Constitution’s protection against compelled self-incrimination, the [Supreme] Court established in Miranda ‘certain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation.’ ” Florida v. Powell,
Laurent argues that “it is undisputed” that he was in custody during the December 2, 2010, interview regarding the Lux Bond & Green robbery. (Omnibus Mot. at 39.) Because this interrogation was custodial, he contends, the government is required to show that he knowingly and voluntarily waived his right to remain silent, for which — he asserts — there is no evidence. (Id. at 40.) In response, the Government disputes both of Laurent’s conclusions. First, the Government argues that Laurent was not in custody for Miranda purposes. (Gov’t Mem. in Opp’n at 32.)
1. Custody
A law enforcement officer’s obligation to administer Miranda warnings attaches “only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’” Stansbury,
The Court has also held, however, that “[n]ot all restraints on freedom of movement amount to custody for purposes of Miranda.” Id. at 1189, 1190 (“Our cases make clear ... that the freedom-of-movement test identifies only a necessary and not a sufficient condition for Miranda custody.” (quoting Maryland v. Shatzer,
Because “imprisonment alone is not enough” to establish custody, the court looks to the relevant factors outlined in Howes to determine, in light of the objective circumstances of Laurent’s interview, whether a reasonable person would have felt at liberty to terminate the interrogation and leave. Howes,
Laurent correctly points out that despite the Government’s contention (see Gov’t Mem. in Opp’n at 29), there is no evidence in the record — namely, the Case Report— regarding whether Laurent was handcuffed or the interviewers were armed. (Def. Reply Mem. at 13.) He further argues that even if those facts were proven, “common sense indicates that an individual with a limited prior history of police contact, who was incarcerated at the time of the interview, would not have understood his right to terminate the interview if it was not explicitly explained to him and would have felt compelled to speak with the detectives.” (Id. at 14.) Because the test is an objective one, however, the fact that Laurent had a limited history of police contact is irrelevant, at least with respect to whether he was in “custody.” See Howes,
Still, while the Case Report provides substantial information regarding the manner in which the interrogation was conducted, there is little evidence regarding the circumstances in which Laurent was summoned to the interview. See id. at 1192. For example, there is no evidence regarding what Laurent was told before he entered the interview room, nor is it clear whether Laurent was escorted to the Intelligence Unit or whether he had to wait for an escort when he left the interview. See id. at 1188 n. 4 (noting that it was “impossible to tell” whether the prisoner’s interview was “routine or whether there were special features that may have created an especially coercive atmosphere”). Accordingly, Laurent argues that the lack of video or other documentary evidence with respect to these- issues — among others — -requires suppression, or at least, an evidentiary hearing to determine whether
It is well established that a defendant must show that “disputed issues of material fact exist before an evidentiary hearing is required.” See, e.g., United States v. Viscioso,
Here, the outcome is no different. Laurent’s affidavit contains no factual allegations that both reflect his personal knowledge and would create a disputed issue of material fact, let alone provide a basis for granting suppression. {See Laurent Aff. (Dkt. 173) at 1.) Instead, it merely states that he was interviewed by the officers on December 2, 2010, while he was “in custody at Rikers Island,” that he refused to sign the Miranda waiver, that the agents “continued to question [him],” and that his statements should be suppressed as a result. {Id. ¶¶ 5-7.) Therefore, the court denies the request for a hearing. See Viscioso,
Moreover, given the Supreme Court’s decision in Howes, evidence regarding the circumstances under which Laurent was summoned to the interview would have no effect on the court’s determination regarding custody in this case. In Howes, the prisoner was told at the outset of the interrogation that he could leave at any time, was not physically restrained or threatened, was not uncomfortable, and was offered food and water. 132 S.Ct. at ■ 1193. In addition, the interview took place in a well-lit, average-sized conference room, and the door was sometimes left open. Id. On the other hand, the prisoner “did not invite the interview or consent to it in advance,” nor was he advised “that he was free to decline to speak with the deputies.” Id. (noting the defendant was not read Miranda rights). In addition, the interview lasted for at least five hours in the evening, “and continued well past the hour when [the prisoner] generally went to bed.” Id. Moreover, the officers who questioned the prisoner were armed, and one of them — according to the prisoner— used “a very sharp tone,” and, on one occasion, profanity. Id. Finally, because he was incarcerated, the prisoner “was not free to leave the conference room by himself. ... Instead, he was escorted to the conference room and, when he ultimately decided to end the interview, he had to wait about 20 minutes for a corrections officer to arrive and escort him to his
By contrast, Laurent’s interview lasted less than 50 minutes and took place during the middle of the afternoon. Cf. id. at 1186 (noting prisoner arrived at conference room between 7 p.m. and 9 p.m. and was questioned for between five and seven hours). More importantly, Laurent received Miranda warnings advising him of his right to remain silent at the beginning of the interview. Cf. id. (“At no time was [the prisoner] given Miranda warnings or advised that he did not have to speak with the deputies.”).
2. Invocation
Yet even if the court were to conclude that Laurent were in custody for Fifth Amendment purposes, it would not necessarily follow that his statements should be suppressed. Laurent insists that as a result of his lack of advanced education and the “significant psychological pressure” of the situation, his refusal to sign the Form constituted an invocation of his right to remain silent. (See Omnibus Mot. at 40.) After the Supreme Court’s decision in Berghuis v. Thompkins,
Here, the Second Circuit’s decision in Plugh is particularly instructive. There, the suspect — who was arrested, handcuffed, and advised of his Miranda rights' — -told the agents that he understood his rights, but refused to sign a waiver-of-rights form, saying “I am not sure if I should be talking to you,” and '“I don’t know if I need a lawyer.”
Similarly, although he refused to sign the Form, at no point did Laurent state that he wished to invoke his right to remain silent, nor was his course of conduct “such that the officers should reasonably have been put on notice that ... no further questioning could occur.” See id. at 126 (internal citations omitted). Moreover, unlike the defendant in Plugh, Laurent never made statements that created ambiguity or “bespoke indecision” with respect to invocation. Id. at 125-26. Finally, after Laurent asked to leave and the questioning ceased, Laurent stated that he would have his attorney with him if he ever met the interviewers again. If anything, this strongly suggested both that he understood he had a right to counsel and that he affirmatively chose not to exercise that right during the interview. Given these facts, after Berghuis and Plugh, it is clear that Laurent did not unambiguously invoke his right to remain silent, even though he refused to sign the Form. See id.
3. Waiver
Nonetheless, where an interview is custodial — even if the defendant fails to invoke his right to remain silent — any statement made “is inadmissible at trial unless the prosecution can establish that the accused in fact knowingly and voluntarily waived [Miranda ] rights when making the statement.” United States v. Taylor, 745
“While the government bears the burden of demonstrating a knowing and voluntary waiver, such a waiver need not be express.” Plugh,
Laurent contends that the Government has not offered sufficient evidence to establish that he knowingly and voluntarily waived his Miranda rights. (See Def. Reply Mem. at 14 (“It is obvious that [his] refusal to sign the waiver was a refusal to waive his right to remain silent.”).) The Government argues, however, that by continuing to answer the interviewers’ questions after having received- and understood the Miranda warnings, Laurent implicitly waived his right to remain silent. (Gov’t Mem. in Opp’n at 33.) Certainly, it is well established that “waiver can be inferred from the actions and words of the person interrogated.” Plugh,
In maintaining that his waiver was not voluntary, Laurent cites to his high school GED education to argue that he experienced “significant psychological pressure from the mere fact of ... custodial interrogation.” (Omnibus Mot. at 40;' see also Def. Reply Mem. at 14 (“The coercive nature of the interrogation combined with a lack of familiarity with police procedure ... mandate suppression... \ ”).) As further support, Laurent points out that the Case Report indicates the officers “confronted” Laurent with certain information and “stated that he was lying.” (Def. Reply Mem. at 15.) There is no evidence, however, that the circumstances of his questioning were sufficient to overbear Laurent’s will. See Taylor,
Significantly, Laurent does not dispute the Case Report’s account of the interview. Instead, he argues that his waiver was not knowing or voluntary because “there is no indication that [he] initialed the form to signify understanding.” (Omnibus Mot. at 40.) While it is generally true that “a suspect who reads, acknowledges, - and signs an ‘advice of rights’ form before making a statement has knowingly and voluntarily waived Miranda rights,” Taylor,
Here; Laurent explicitly stated he understood the warnings, admitted to having received them on a previous occasion, and — after answering the officers’ questions for nearly 50 minutes — -informed them that he was becoming “annoyed” and would bring his attorney to any future visits. As a result, the Government has demonstrated by a preponderance of the evidence that Laurent’s waiver of Miranda rights was knowing and voluntary, despite his refusal to sign the Form. Accordingly, even if he were in “custody,” since Laurent was provided with Miranda warnings, did not unambiguously invoke his right to remain silent, and implicitly waived this right by proceeding to answer questions, his motion to suppress his statements to law enforcement officers on December 2, 2010, is DENIED.
VI. MOTIONS RELATED TO LAURENT’S REFUSAL TO PROVIDE DNA SAMPLE
Laurent has also made two motions with respect to his refusal to provide the Government with a sample of his DNA pursuant to two search and seizure warrants. First, Laurent moves to exclude from trial any reference to his conduct and statements in connection with two attempts by law enforcement to execute these warrants in 2011. (Omnibus Mot. at 41-42.) Second, Laurent moves to compel the Government to disclose both the DNA warrants and the underlying applications. (Id. at 43-46, 51.) Although they are related, the court proceeds by considering each motion separately.
A. Motion to Suppress Statements and Conduct in Response to Execution of Warrants
The Government has argued that Laurent’s refusal to provide a DNA sample pursuant to lawful search and seizure warrants is relevant evidence of his consciousness of guilt with respect to the Lux Bond & Green robbery. (Gov’t Mem. in Opp’n at 36.) Laurent maintains, however, that his resistance is inadmissible under Federal Rules of Evidence 401 and 403, both because it is irrelevant and because the probative value of this evidence is substantially outweighed by its prejudicial effect. (Omnibus Mot. at 41-42.) For the following reasons, while certain evidence of Laurent’s refusal to submit to DNA testing is admissible, other evidence is not. As a result, the motion is GRANTED in part and DENIED in part.
1. Background
During October and November of 2011, Laurent was in federal custody pending trial on charges in a separate criminal case. See Order of Detention, United States v. Laurent, No. 11-CR-322 (JBW) (E.D.N.Y. Apr. 13, 2011), ECF No. 8. (See also Omnibus Mot. at 33.) At that time, WHPD Detective Mark Puglielli and NYPD Detective William Van Pelt were investigating the June 2010 robbery of the Lux Bond & Green jewelry store in West
At approximately 12:15 p.m. on October 20, 2011, the date the warrant was obtained, Detectives Puglielli and Van Pelt attempted to execute the warrant by meeting Laurent while he was in the custody of the U.S. Marshals Service in the Eastern District of New York. (Id. at 3.) After the detectives advised Laurent that they had obtained a warrant authorizing the swab, and showed him the court order, Laurent stated that his DNA was already on file and that his attorney had not told him about the warrant. (Id.) According to the detectives, Laurent further stated that he would not submit to swabbing and asked them if they were going to fight him to obtain his DNA sample. (Id.) After the detectives attempted to persuade Laurent to comply, Laurent allegedly grabbed the swab held by Detective Van Pelt, and snapped the stick portion of the swabbing. (Id.) As he was being escorted back to his cell, Laurent apparently told the detectives that they could “suck his dick.” (Id.).
On November 14, 2011, Detective Van Pelt and two other WHPD officers, Juda and Cavedon, obtained another search warrant authorizing them to obtain a sam-pie of Laurent’s DNA by buccal swab. (Id. at 4.) On November 15, 2011, Detective Van Pelt and the officers attempted to execute this second search warrant during Laurent’s previously scheduled court appearance at the Kings County Courthouse, before New York State Supreme Court Judge Suzanne M. Mondo.
2. Discussion
Federal Rule of Evidence 401 provides that evidence is relevant if: “(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.” Pursuant to Rule 403, however, the court may exclude relevant evidence “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or need
Laurent argues first that his statements and conduct with respect to his refusal to provide a DNA sample are not relevant to whether he is guilty of the Lux Bond & Green robbery. (Def. Reply Mem. at 16 (“The fact that Mr. Laurent uttered a profanity or overturned a table and chair has absolutely no tendency to make it more likely than not that he committed that crime. Mr. Laurent’s statements and conduct have nothing to do with racketeering, with his alleged membership in the Six Tre Folk Nation, or with the facts of the alleged robbery itself.”).) Second, Laurent insists that even if this evidence is relevant, it should be excluded from trial under Rule 403. (Omnibus Mot. at 41.) In support of this argument, Laurent points to the fact that he resisted execution of the DNA warrants because he was aware that his DNA was already on file. (Id.) As a result, he contends, the probative value of this evidence is substantially outweighed by the danger that the jury would infer that Laurent refused to provide a DNA sample out of fear that it would implicate him in the robbery. (Id. at 41^42.)
The Government counters that Laurent’s refusal to submit to swabbing is relevant evidence of his consciousness of guilt with respect to the jewelry store robbery, which it should be permitted to argue to the jury. (Gov’t Mem. in Opp’n at 36.) Furthermore, the Government maintains that because Laurent is charged with murder, attempted murder, and multiple robberies, among other crimes, there is “little or no chance” of undue prejudice resulting from presenting evidence related to Laurent’s resistance to swabbing. (Id.) In reply, Laurent insists that consciousness of guilt is not a proper purpose for admitting evidence. (Def. Reply Mem. at 16.) Moreover, he asserts that by arguing that his refusal to provide a DNA sample demonstrates consciousness of guilt, the Government effectively “put[s] words in his mouth, against which he cannot defend himself without potentially endangering his Fifth Amendment right against self-incrimination.” (Id.) The court first takes up Laurent’s argument with respect to relevance under Rule 401 before conducting the Rule 403 analysis.
a. Rule k,01
i. Laurent’s Statements and Conduct
Laurent’s Rule 401 argument is correct, to a certain extent. With respect to the officers’ attempted execution of the October 20, 2011, search and seizure warrant, Laurent’s statements — asking the officers if they were going to fight him to obtain the DNA sample, and telling the officers that they could “suck his dick”— and his conduct — snapping the test swab in half — render no fact of consequence in this case more or less probable. See Fed. R.Evid. 401. That is, the fact that Laurent demonstrated a cavalier and disrespectful attitude toward law enforcement says nothing about his consciousness of guilt.
ii. Laurent’s Resistance to Swabbing Generally
By contrast, evidence of the fact of Laurent’s refusal to submit to swabbing is relevant. This is because, as decisions by the Supreme Court and Second Circuit illustrate, the Government is permitted— in certain circumstances — to offer evidence of such refusal as proof of a defendant’s consciousness of guilt in a criminal trial. In South Dakota v. Neville,
Just four days before the Court announced its decision in Neville, the Second Circuit decided United States v. Terry,
On appeal, the Second Circuit held that because the government had a right to obtain prints pursuant to a lawful custodial arrest, without the presence of counsel, the defendants’ refusals to provide prints was admissible as evidence of consciousness of guilt. Id.; see also Grigg v. Phillips,
Thus, taken together, Neville and Terry stand for the proposition that a defendant’s refusal to submit to the collection of a bodily substance through a safe, painless, commonplace — and lawfully requested — test may be properly admitted as evidence of his consciousness of guilt without violating the Fifth Amendment. See Neville,
The facts in Wade, in particular, closely parallel those in this case. There, the defendant refused to submit to DNA testing, even after being advised that police had a search warrant authorizing them to. use force, if necessary, to obtain a sample of his DNA. Wade,
Similarly, Laurent’s refusal to submit to a buccal swab is relevant and probative evidence of his consciousness of guilt. There is no indication — and Laurent has not suggested — that either of the search and seizure warrants was legally invalid.
Of course, Laurent is entitled to introduce evidence that he refused swabbing because his counsel had not told him about the warrant, see Terry,
b. Rule WS Analysis
Even though evidence of the fact of Laurent’s refusal to provide a DNA sample is relevant, its admissibility remains subject to Rule 403 analysis. No federal court appears to have explicitly addressed the admissibility, in the Rule 403 context, of a suspect’s refusal to submit to a valid DNA warrant as evidence of consciousness of guilt.
3. Conclusion
In sum, the court holds that consciousness of guilt is a proper purpose for which the Government may offer certain evidence related to Laurent’s refusal to submit to valid DNA search and seizure warrants. To this end, the Government is permitted to introduce the fact of Laurent’s refusal to provide a DNA sample pursuant to a valid warrant on two separate occasions.
B. Motion to Compel DNA Search and Seizure Warrants
As the court explained, whether law enforcement officers have obtained a valid search and seizure warrant is a central issue in determining whether a suspect’s refusal to provide a DNA sample may be introduced as evidence of consciousness of guilt. See supra Part VI.A.2.a.ii. Here, the Government contends that the officers obtained court orders on October 20, 2011, and November 14, 2011. (See Case Reports at 2, 4.) Accordingly, the court concluded that Laurent’s refusals to provide a DNA sample may be introduced as evidence of his consciousness of guilt with respect to the Lux Bond & Green robbery. In his Omnibus Motion, however, Laurent indicates that he has not received a copy of either the October 20, 2011, or the November 14, 2011, search and seizure warrants authorizing the collection of his DNA by buccal swab. (Omnibus Mot. at 50.) As a result, Laurent has moved to compel the Government to disclose these documents, claiming that he is entitled to them under Federal Rule of Criminal Procedure 16. (Id. at 43-46, 51.) The Government has opposed this motion. (Gov’t Mem. in Opp’n at 38.)
Rule 16 provides in relevant part that upon the defendant’s request, the Government “must permit the defendant to inspect and to copy or photograph books, papers, documents ... or copies or portions of any of these items, if the item is within the government’s possession, custody, or control and; (i) the item is material to preparing the defense; [or] (ii) the government intends to use the item in its case-in-chief at trial.” Fed.R.Crim.P. 16(a)(1)(E). The Government argues that disclosure of the October 20, 2011, and
Laurent contends, however, that he is entitled to “any application made in relation to the DNA evidence.”
Laurent’s second argument is readily dismissed. Any report regarding a DNA test that is within the Government’s possession or control and is material to preparing Laurent’s defense must be disclosed pursuant to Rule 16(a). See Fed. R.Crim.P. 16(a)(1)(F) (further requiring that an attorney for the Government know — or through due diligence could know — that the item exists). In addition, “the Government has a constitutional duty to disclose evidence favorable to the accused where such evidence is ‘material’ to guilt or punishment,” including “not only evidence that tends to exculpate the defendant, but also evidence that is useful to impeach, the credibility of a government witness.” United States v. Coppa,
With respect to his first argument, Laurent does not clarify precisely how having access to the warrants and application would enhance his motion. Nevertheless, because the validity of the DNA search and seizure warrants is central to finding that the Government may introduce evidence of Laurent’s refusal to comply as evidence of consciousness of guilt, the court presumes that Laurent would seek to challenge the validity of those warrants in moving to suppress his response. On this basis, the court concludes that the warrants and applications are material. Evidence is material “if it could be used to counter the government’s case or to bolster a defense.” United States v. Stevens,
Therefore, the Government is hereby ORDERED to disclose copies of the October 20, 2011, and November 14, 2011, DNA search and seizure warrants to Laurent.
VII. MOTION TO EXCLUDE LAURENT’S ALIAS
The Third Superseding Indictment alleged that Laurent is also known as “Tails” and “Gunner.” (Superseding Indictment (S — 3) (Dkt. 71) at 1.) In his Omnibus Motion, Laurent moved pursuant to Federal Rule of Evidence 403 to (1) exclude from trial any reference to the alias “Gunner” and (2) to redact this alias from the Third Superseding Indictment as well. (Omnibus Mot. at 42-43.) In its response, however, the Government indicated that it did not oppose this motion. (Gov’t Mem. in Opp’n at 44 n. 18.) Additionally, all references to the alias “Gunner” were removed from the Fourth Superseding Indictment, which was docketed on December 5, 2014, after the parties had briefed this motion. (Compare Superseding Indictment (S-4) (Dkt. 237) at 1, ¶¶ 6, 8, 33, 35, 40, 42-46, with Superseding Indictment (S-3) at 1, ¶¶ 2, 7, 27, 38-39, 41^2, 49-51.) As a result, this motion is DENIED as moot.
VIII. MOTION TO COMPEL DISCOVERY
Finally, Laurent moves to compel certain additional disclosures under Rule 16 and Brady v. Maryland,
As a result, Laurent is ORDERED by Monday, January 12, 2015, to submit a letter to the court explaining the extent to which his Motion to Compel Discovery (Dkt. 217) and the present motion to compel (Omnibus Mot. at 43-56), remain live. Accordingly, this motion is GRANTED in part, with respect to the DNA search and seizure materials, and STAYED in part, with respect to the remainder.
IX.CONCLUSION
Accordingly, for the reasons set forth above:
• Laurent’s Motion to Suppress Cell-Site Records is DENIED;
• Laurent’s Motion to Suppress Text Messages is DENIED as moot;
• Laurent’s Motion to Exclude Merritt’s Statements (as modified, see supra note 24) is DENIED;
• Laurent’s and Merritt’s Motions to Sever are DENIED;
• Laurent’s Motion to Suppress Statements to Law Enforcement is DENIED;
• Laurent’s Motion to Suppress Statements and Conduct in Connection with His Refusal to Provide a DNA Sample is GRANTED in part and DENIED in part;
• Laurent’s Motion to Exclude Alias is DENIED as moot;
• Laurent’s Motion to Compel Discovery .is GRANTED in part and STAYED in part. The Government is ORDERED to disclose the 2011 DNA search and seizure warrants. It is further ORDERED by Friday, January 9, 2015, to show cause why the underlying applications should not also be disclosed. Laurent is also ORDERED, by Monday, January 12, 2015, to file a letter explaining the extent to which his two motions to compel discovery remain live.
SO ORDERED.
Notes
. This Indictment replaces the Third Superseding Indictment (Dkt. 71), which was filed on November 15, 2012, and named five additional defendants, each of whom has since pleaded guilty. (See also Dec. 5, 2014, Gov’t Ltr. (Dkt. 238) (further explaining differences between the Third and Fourth Superseding Indictments).)
. Ashburn is named in connection with two individual RAs; Laurent is named in connection with eight individual RAs; and Merritt is named in connection with four individual RAs.
. All citations to pages of the parties' exhibits correspond to the page numbering assigned by the court’s electronic docketing system (ECF). By contrast, all citations to pages of the parties' memoranda correspond to the parties’ page numbers.
. It was later determined that the two men stole 20 Patek Philippe watches, with a total approximate value of $583,250.00. (4017 Application and Order at 3.)
. Statements made by Defendant Trevelle Merritt regarding the circumstances surrounding this murder are also the subject of Laurent’s motion to exclude. See infra Part III.
. The 6638 Application and Order does not state how the toll records were obtained.
. Significantly, Laurent has not alleged a statutory violation in the issuance of either judicial order in this case.
. The court further held that the so-called third-party disclosure doctrine did not apply because “cell phone users have a reasonable expectation of privacy in cumulative cell-site location records, despite the fact that those records are collected and stored by a third party.” Historical Cell-Site Info,
. In Rakas, the Supreme Court explained that because "Fourth Amendment rights are personal in nature,” "the definition of those rights is more properly placed within the purview of Fourth Amendment law than within that of standing.”
. The court notes that the Government has not opposed Laurent’s motion to suppress on standing grounds.
. Although "the warrant requirement is subject to exceptions,” e.g., Missouri v. McNeely, - U.S. -,
. In dicta, the majority rejected this sliding-scale approach to determining whether the Government had effected a Fourth Amendment search. Id. at 954.
. In this regard, the Government highlights Justice Alito's observation that "the best solution to privacy concerns may be legislative,” and that "Congress and most States have not enacted statutes regulating the use of GPS tracking technology for law enforcement purposes.” (Gov’t Mem. in Opp'n at 18 (quoting Jones,
. In fact, as the Government points out, the officers in Krull had relied on a statute that authorized warrantless administrative searches, which required no ex ante judicial ratification. (Gov't Mem. in Opp’n at 15.) Here, by contrast, the Government relied on not only statutes, but also on judicial authorization.
.Significantly, the Second Circuit has still not directly decided the constitutionality of § 2703(d). In United States v. McCullough,
If the Government’s request for historical cell-site records were not authorized under the SCA or section 54-47aa, the fact that the Second Circuit had not directly decided whether the search was constitutional may have given rise to a related issue: whether the good faith exception can apply in the absence of binding appellate precedent. This question has divided district courts. See, e.g., United States v. Lopez,
. Laurent himself acknowledges several of the decisions that had been issued prior to Magistrate Judge Pohorelsky’s order in this case. (See Omnibus Mot. at 19 n. 16 (citing United States v. Benford, No. 09-CR-86,
. Notably, Jones does 'not appear to have substantially altered the state of the law as to historical cell-site records. After Jones, as before, most courts — including in this district' — continued to find that a § 2703(d) order is sufficient without a warrant. See In re Application of United States for Historical Cell Site Data,
. Magistrate Judge Orenstein had also granted requests for similar data in the past. See
. Laurent has also moved to suppress text messages from the 6638 phone, which the Government obtained from the cellular service provider pursuant to Magistrate Judge Pohorelsky’s order. (Omnibus Mot. at 22.) The Government indicated, however, that it will not seek to admit the contents of the messages into evidence at trial, as the messages appeared to have been obtained and produced in error. (Gov’t Mem. in Opp’n at 4 n. 3.) As a result, this motion is DENIED as moot.
. Cell phone records obtained by the Government indicate that Laurent called James minutes before James’s murder, but that Laurent never called James again. (6638 Application and Order at 4.)
. Laurent further argues that the Government could use the attempted robbery and murder of Dasta James to prove the conspiracy to murder charged in Racketeering Act ("RA”) 1, in which Laurent is also named. (Omnibus Mot. at 26.) RA 1 charges all three
. The Government indicates that it will seek to introduce evidence — other than Merritt’s statements — -regarding Laurent’s participation in the attempted murder and robbery of Dasta James, as proof of the existence of the criminal enterprise. (Gov’t Mem. in Opp’n at 21 n. 12 (citing United States v. Baez,
. As the Second Circuit has previously observed, "[t]he,same attenuation of [the declar-antes statements from [his co-defendants]’ guilt that prevents Bruton error also serves to prevent Crawford error. Thus, there is no separate Crawford problem, and we see no indication that Crawford overrules Richardson or expands the holding of Bmton.” United
. The court notes that these substitutions would be made even less awkward still by further altering the last phrase in each. See Jass,
. Laurent also moves to suppress statements that he made to law enforcement officers on July 12, 2010, regarding the murder of Brent Duncan. (Omnibus Mot. at 40.) In Racketeering Act 4 of Count One (racketeering), Laurent is charged with murder in connection with Duncan’s death. (Indictment ¶ 12.) Laurent is also charged in Count Five with murder in-aid-of racketeering for the same crime. (Id. UK 39-40.) While the Govern
. The Case Report reflects that at the time of the interview, Laurent was a suspect in the robbery. (Case Report at 2.)
. The precise circumstances under which the interview proceeded are unclear, and the Case Report is silent on this question. (See Case Report at 2-3. Compare Gov’t Mem. in Opp’n at 30 ("Nonetheless, Laurent elected to proceed with the interview and did not ask to consult with an attorney.”), with Omnibus Mot. at 35 ("Nonetheless, the officers continued to question him.”).)
. Therefore, even if Laurent was in fact escorted to and from the Intelligence Unit — for which there is no evidence — this would not distinguish his case from Howes. See also id. at 1192 ("[S]uch procedures are an ordinary and familiar attribute of life behind bars. Escorts and special security precautions may be standard procedures regardless of the purpose for which an inmate is removed from his regular routine and taken to a special location.”).
. Thus, although the prisoner in Howes was told he was free to leave at the onset of the interview, this does not render Laurent's circumstances inherently more coercive, particularly because Laurent received Miranda warnings.
. While the Second Circuit declined to decide "whether a refusal to sign a waiver-of-rights form could, itself, ever amount to sufficient action to trigger the ... prophylactic rule ... it suffice[d] to say, as the facts of this case amply demonstrate, that such a refusal will not always constitute 'sufficient action’ particularly where, as here, it is accompanied by statements indicating ambivalence or uncertainty." Plugh,
. Laurent is charged in connection with the robbery of employees of jewelry stores in New York, New Jersey, and Connecticut in Racketeering Act 3 of Count One (racketeering) and Count Eight (Hobbs Act robbery conspiracy) of the Indictment. (See Indictment ¶¶ 11, 44.) The circumstances surrounding the June 2010 robbery of Lux Bond & Green are set forth in detail in Part II.A. 1 supra.
. Laurent was scheduled to appear before Judge Mondo in connection with Laurent's indictment in a separate New York State criminal matter, People v. Laurent, Indictment No. 6052/2010. (Omnibus Mot. at 32-33, 37.)
. The Supreme Court has explained that “unfair prejudice” means "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Old Chief v. United States,
. The court presumes, for the sake of Rule 401 analysis, that consciousness of guilt is a
. South Dakota's motor vehicle law expressly provided that the refusal to submit to a chemical test or to allow a withdrawal of bodily substances could be used against a defendant at trial. S.D. Codified Laws §§ 32-23-10.1, 19-13-28.1 (originally enacted at Session Law 1980, Ch. 230, §§ 1, 2). Accord Deering v. Brown,
. The government also sought to admit their refusals to explain why the government’s fingerprint expert had not identified the print on the paper bag, after that fact had been brought out by defense counsel. Terry,
. But see generally infra Part VLB.
. In this respect, United States v. Mitchell, No. 06-CR-20034 (JWL),
. Laurent's conduct in the conference room after his court appearance on November 15, 2011, would still not be relevant to his state of mind regarding consciousness of guilt. But see infra, note 40.
. Laurent’s behavior on both dates that he refused to be swabbed, including on November 15, 2011, is also relevant and thus admissible if Laurent suggests — which, to this point, he has not — that the officers did not make a genuine, good faith attempt to execute the warrant on either date. In that case, his November 15 behavior is relevant because it was only after officers learned that he overturned the table and chair that they decided not to further pursue obtaining a sample of his DNA that day. (Case Reports at 5.)
. In Franklin, however, the district court excluded one of the defendant’s two refusals to submit to a valid DNA warrant. See
.In this regard, the court notes that a small number of state courts have also conducted Rule 403-style balancing tests with respect to the admission of defendants’ refusals to provide DNA samples. Where defendants have refused to submit to lawfully requested DNA tests, these courts appear to consistently find that that the probative value of this evidence with respect to consciousness of guilt is not substantially outweighed by the danger of unfair prejudice. See, e.g., Thomas v. State,
. The court believes the Government is still attempting to obtain a DNA sample from Laurent. If the Government does in fact obtain this sample before trial, Laurent may renew his motion to exclude evidence of his prior refusals.
. But see supra note 43. If the Government does obtain a sample of Laurent's DNA, presumably this argument is moot.
. Laurent has offered, however, to abandon this request in the event the Government agrees not to offer "any testimony surrounding the state court's order for.his DNA, [his] appearance in court pursuant to that order, his reaction to the court order compelling the taking of his DNA, and his statements regarding that request.” (Omnibus Mot. at 51.)
. In this regard, the court notes that the Government claims to have shown the October 20, 2011, warrant to Laurent himself during the officers' attempt to execute it. (See Case Reports at 3.)
. For example, production of the underlying applications may be bared by Rule 16(a)(2) if they contain documents "made by an attorney for the government or other government agent in connection with investigating or prosecuting the case.” The court further notes that Rule 16 does not authorize the discovery or inspection of "statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500.” Fed. R.Crim.P. 16(a)(2).