ORDER ON DEFENDANTS’ MOTIONS
On August 5, 2015, this matter came on for hearing before the court on the follow
Having read the parties’ papers and carefully considered their arguments and the relevant legal authority, and for the reasons stated on the record and set forth below, the court DENIES the motions for a bill of particulars; DENIES IN PART the motion for discovery and disclosure of Rule 404(b) evidence and REOPENS IN PART the motion for disclosure of the identity and communications of the confidential informant; DENIES the motion for search and disclosure of electronic surveillance; DENIES the motion to suppress eyewitness identifications filed by Pennymon; and DENIES the motion to suppress evidence seized from illegal search conducted on residential curtilage.
Because the court expects further briefing on the motion for disclosure of the confidential informant, whose communications to law enforcement were relied upon in the search warrant and arrest warrant affidavits, the motions to suppress evidence seized during the search of Apartment 212, seized pursuant to Ellis’s arrest, and seized from digital devices remain under submission. The motion to suppress pretrial and in-court identifications filed by Ellis remains pending before the court, and will be taken under submission after the parties file supplemental materials related to the transcripts of audio recordings as set forth below. The application for issuance of a Rule 17(c) subpoena remains under submission, pending a determination by the court whether to grant defendants’ request for an evidentiary hearing.
I. BACKGROUND
Defendants Purvis Lamar Ellis (aka “B.O.T.”), Deante Terrance Kincaid (aka “Tay-Tay”), Damien Edward McDaniel (aka “Famous” and “LiT Dame”), and Joseph Pennymon (aka “Junkie”) are charged with racketeering as associates of the Sem City street gang in East Oakland. Sem City members allegedly conducted activities primarily in the Seminary neighborhood bordered by Seminary Ave., International Blvd., 62nd Ave. and Foothill Blvd.
The indictment alleges that defendants were involved in two specific incidents in furtherance of the racketeering conspiracy. On January 20, 2013, all defendants were
After police responded to Officer K.’s shooting the evening of January 21, 2013, Oakland police secured the apartment complex and obtained search warrants to search Apartments 108,110 and 212, based on information provided by a confidential informant (“Cl”). A separate search warrant for Apartment 112 and an arrest warrant for Ellis were issued that afternoon on January 22, 2013, based in part on information provided by the Cl in support of the probable cause affidavits. The search warrant and arrest warrant affidavits are subject to a sealing order issued by the court on November 18, 2014.
A. January 20; 2013 Shooting
At approximately 3:45 p.m. on January 20, 2013, a witness allegedly saw two suspects run after and then shoot a man who had been waiting at the bus stop near 5912 Foothill Boulevard in Oakland. Based on a statement given the day of the shooting, the witness was waiting at a bus stop in front of the diner at 2566 Seminary, at 3:30 p.m. Immediately before going to the bus stop, the witness was in C-Town Smoke Shop, located at 2550 Seminary Avenue at Fortune Boulevard. While in the store, the witness saw an African American male arguing with another man. One of the men was approximately 20 years old, 6’, 170 lbs, medium, complexion, faded hair with short waves on top, wearing a burgundy leather jacket, blue jeans, and sneakers that matched his jacket. Doc. no. 82, Ex. A (Alvarez report) at REPORTS-DOCUMENTS (“RD”) 0012. The witness then left the store and waited at the bus stop in front of ATs Diner (2566 Seminary Avenue).
The witness then saw another black male go into the store, about 17-20 years old, 5'9", medium complexion, wearing a black beanie, black hooded sweater and jeans. He kept walking in and out of the store with the first man in the leather coat. The second man was on the phone saying “Them boys around the corner,” and the man in the leather coat asked, “Who? The police?” The man on the phone said yes.
A few minutes later, the witness saw the man in the leather jacket walk to the corner of Seminary and Foothill, looking to the bus stop on the other side of Foothill, where the 40 line stops. The man in the leather jacket came back to the store and nodded to the man in the black hooded sweater and they both went around the corner to Fortune Boulevard. A few seconds later, according to the witness, he saw the man in the black hooded sweater (“Suspect 1”) running from Fortune to Foothill Blvd., passing right in front of the witness on Seminary Blvd., and holding a black semi-automatic pistol. When Suspect 1 reached the corner of Foothill Boulevard and Seminary Avenue, the witness saw him shooting at the 40 bus stop on the other side of Foothill Boulevard.
The witness went into the former Tom’s Kitchen, located at 5907 Foothill Boulevard, on the corner of Foothill Boulevard and Seminary Avenue. The witness looked out the window and saw a man (Victim 1) running away from the .shooter (Suspect 1). The witness also saw a second suspect (“Suspect 2”) running toward Seminary Avenue from the direction of 60th Avenue; Suspect 2 also was reported as shooting at the fleeing victim. Suspect
The first shooter ran to where the victim was, but the witness didn’t remember if the first shooter shot the victim when he was next to him. The first shooter ran back to the white car on Walnut and got into the backseat behind the driver. The witness wrote the license plate of the white car. The witness described the driver of the vehicle as a “black male in his 20’s” who “was dark skinned with dreads past his shoulders, and he had a thick mustache and a thin goatee.” Def. Ex, 82-A (Alvarez report) at RD 000013. A police officer showed the witness a picture of a 2012 Dodge Avenger on her tablet device, and the witness confirmed that it was the same as the vehicle that the shooters fled in. The witness heard about 15 gun shots.
From the license plate, the police determined that the car was a Hertz rental car rented to a Laron Means.
B. January 21, 2013 Shooting
1. Description of Incident
At the July 22, 2013 preliminary hearing in the state court proceedings against Kincaid, McDaniel and Pennymon, OPD Officer Eric K. testified about the ‘.events on January 21, 2013 leading up to his shooting. . The-parties- have provided various excerpts of the July 22, 2013 Preliminary Hearing transcript. - See Kincaid Mot. Suppress Search of Curtilage (doc. no. 73), Ex. A (“Def. Ex. 73-A”); Opp. to Pennymon Mot. Suppr. (doc. no. 97), Ex. A (“Gov’t Ex. 97-A”).
On January 21, 2013, OPD Officer Eric K. had just finished working the Warriors game, and at around 5:00 or 6:00 pm that evening, Officer K. was asked to drive to 1759 Seminary Ave. to attempt to locate a vehicle that was used in a shooting the night before, based on a tip from an informant that the getaway car from the shooting thé day before was located in' the parking area. Gov’t Ex. 97-A at 3. The vehicle was described as 2012 Dodge Avenger four-door white car with license plate 6VEP025. Opp. to Mot. Suppr. Arrest (doc. no. 99), Ex. A (Ellis Arrest Warrant Affidavit) (“Gov’t Ex. 99-A”).
Officer K. was acting in an undercover capacity, not driving a marked police car, and he was not wearing a full police uniform, but he was wearing a sweatshirt and uniform pants.. Gov’t Ex. 97-A at 39; Gov’t Ex. 99-A. Officer K. drove past the apartment complex and made a U-Turn to confirm that it was 1759 Seminary. Def. Ex. 73-A at 7. Officer K. noticed a male black (whom he later identified' as Pennymon) standing on the southeast corner of the complex who seemed to lean forward to see who was making the U-tum. Def. Ex. 73-A at 8. Officer K. circled around the block, and saw the drive-in gate to the apartment complex was closed, and noticed a Lexus approach the gate, and a passenger got out and manually opened the front gate. Officer K. followed the Lexüs into the driveway, and reached the rear parking area of the complex. Id. at 11-12.
Officer K. turned his car around in the parking area and saw the suspect vehicle from the January 20 shooting parked in the rear of the apartment complex, based on the description and license plate. Offi
Officer K. saw three individuals walking down the driveway from .-the area of the parking lot behind the apartment complex toward his car. Gov’t Ex. 97-A at 14. The first suspect (whom Officer K. identified as McDaniel) approached the front passenger door, and he was wearing a multi-colored scarf over his head, black peacoat, black T-shirt and dark baggie jeans. Def. Ex. 73-A at 14-15. A second suspect (identified as Kincaid) walked along the driver’s side door and stopped at the driver’s side window, and “was wearing a black hooded jacket that was open with a white T-shirt, baggie T-shirt, with black imprints or designs on it and dark dark [sic] jeans.” Id. at 15. A third suspect (identified as Pennymon) walked to the driver’s side door but stopped at the left rear door. Gov’t Ex. 97-A at 16. Pennymon was wearing a hoodie, but nothing was blocking his face, eyes, nose, mouth or chin. Id. at 22.
Officer K. was on the phone with Officer Miller when Kincaid knocked on the window. Def. Ex. 73-A at 17. Officer K. lowered his window, Kincaid asked him “Who’s you,” and Officer K. told him that he was “looking for a female.” Id. at 17. During the initial contact when Kincaid asked Officer K. who is you, Pennymon said, “I seent [sic] you when you made that U-turn in front of the complex.” Gov’t Ex. 97-A at 42. The timing and course of the conversation is not clear, but Officer K. testified that after he said he was looking for a female, McDaniel asked for a name, so Officer K. came up with a name, Keisha, and McDaniel responded, “There ain’t no Keisha here.” Def. Ex. 73-A at 17. McDaniel and Kincaid inquired further and were looking inside the car, asking Officer K, who he was talking to on the phone; Officer K. said “at this point Pennymon had [sic] said anything.” Id, at 17-18. Officer K. had not yet identified himself as, a police officer during this questioning. ■ . ,
Officer K. noticed Kincaid and McDaniel looking inside the car, where Officer K. kept a compact Glock sitting on the center console, partially covered by a booklet but with the rear of the gun uncovered. Def. Ex. 73-A at 20. Officer K. testified that all three suspects brandished three firearms on him, with Kincaid and Pennymon at the- driver’s side window, no more than one foot away from ■ Officer K;, pointing their guns about 4 inchés-from Officer K.’s head.' Gov’t Ex. 97-A at 22-23. One- firearm “was a dark -colored semiautomatic pistol” and the second one was a,“chrome and black” semiautomatic. Id. at 23. MeDániel was pointing his gun at Officer K. through the window. Id. at 23.
Officer K. exited his car, and was kept in the V of the door. Id. at 26. He was “looking around the driveway, looking up, looking out windows, not only to see if anybody’s out there, but also to look at additional possible threats besides the three that I have.’’ Id. at 26.. He was paying attention to the, three individuals “[b]ecause I know at some point if I do recover from the incident, I would have to identify them.” Id. at 26. He was looking at “height, weight, facial- features, build, demeanor, firearms.” Id.,
Officer K. carried a gun holstered on his duty belt, and Kincaid told. Officer K. to “give it up” or hand-, over his gun. Id. = at 28. McDaniel was unable to remove Officer K.’s holster or firearm from the holster, and wrestled with Officer K. for the gun. First Kincaid pistol-whipped Officer
McDaniel appeared to get frustrated because he wasn’t able to remove Officer K’s gun from the holster, and pointed his firearm toward Officer K.’s forearm, and fired one round. Officer K. was shot in his left wrist. At that point, Officer K. told them “I’m the police”; “5-0”; I’m a cop.” Id. at 39. Kincaid put his pistol on the bridge of Officer K.’s nose and said “I don’t care if you’re the police.” Id. Kincaid and Pennymon pistol-whipped him again, about once or twice each, and then they fled. Id. at 41-42. McDaniel tried to run off, but Officer K. struggled with him, and he slid out of his jacket and ran off as Officer K. saw the first patrol unit arrive on scene. During the struggle, the suspects allegedly took two pistols from Officer K.
As McDaniel fled, responding officers arrived and Officer K. was transported to the hospital.
2. Photo Lineups
At the hospital, Officer K. was treated for a gunshot wound to the left forearm and three lacerations on the top left of his head, resulting in about 13 or 14 stitches. Gov’t Ex. 97-A at 45. He was released by 1:00 am on January 22, 2013. Officer K. was given morphine, then was visited by family at the hospital. He was fine until his baby sister came in the room, at which point he became emotional. Id. at 46-47.
OPD Officers Basa, Milina, Sanchez and Nolan came to the hospital on January 21, 2013, while the family was visiting. After Officer K.’s sister arrived and after he was given morphine, the officers showed Officer K. a photographic lineup at around 9:18 pm. Id. at 47-48. The lineup included photos of Pennymon and five other men, and Officer K. did not identify him as an assailant. Pennymon Mot. Suppr. (doc. no. 71), Ex. A (“Def. Ex. 71-A”); Gov’t Ex. 97-B.
Two days later, January 24, 2013, at the Criminal Investigation Division, police showed Officer K. three more photo arrays. One array included Kincaid and five other men. The second array included McDaniel and five other men. The third array included J.B., who was then a suspect, and five other men. None of those arrays shown on Januaiy 24 included Pennymon’s photograph. Officer K. identified Kincaid and McDaniel, and not J.B. Opp. to Pennymon Mot. Suppr. (doc. no. 97), Ex. D (Brandwood Decl.).
On February 21, 2013, police showed Officer K. another six-pack photo lineup that included Pennymon’s most recent booking photograph. Officer K. requested that black hooded sweatshirts be added over the faces because the third assailant wore a hoodie that covered his face throughout the duration of the shooting. Pennymon Mot. Suppr. (doc. no. 71) at 5. Officer K. identified Pennymon, in position number 3, in the photo array. Gov’t Ex. 97-A at 52.
C. Search of Apartments
The Incident Recall CAD provides the following timeline of the searches of the apartments. Opp. to Mot. Suppr. Apt. Search (doc. no. 95), Ex. A (“Gov’t Ex. 95-A”).
January 21, 2013
6:26 pm Officer K. was shot. (Gov’t Ex. 95-A at 3370.) Medical personnel and police arrive within minutes. They secured a perimeter, checked license plates within the perimeter, and looked for witnesses. One suspect was described as “MB drk complex 5’6 all blk clothing thin mustache”; and another suspect described as “MBmed bit, short hair, blk clothes.” (Id, at 3370 to 3376.)
8:32 pm Search team had “info that susp[ects] might be involved w/ 1759 Sem[inary],” with “search team moving in” at 8:34 pm. SWAT team was due to “join shortly and brief on search plan.” (Id. at 3376.)
9:26 pm After some occupants of apartment 110 came out (20:50), SWAT was sent in to clear it, given information that at least 2 subjects were still inside # 110, and ordered 2 more occupants to come out and took them in custody. (Gov’t Ex. 95-A at 3376 to 3378.)
10:41 pm Police were “holding perimeter on 1759 Sem” and continue their search of nearby houses, roofs, yards, and a creek. (Gov’t Éx. 95-A at 3380)
11:55 pm Officers announced they were “done w[ith] yard search” and returned to “focus on 1759 Seminary].” (Gov’t Ex. 95-A at 3382.) Police ordered that the “perimeter will be broken down shortly.” At that point, it was early morning of January 22, the police were changing shifts starting around 12:34 am, and police had not yet searched any apartments.
January 22, 2013
12:53 am SWAT re-entered 1759 Seminary. (Gov’t Ex. 95-A at 3383.)
1:05 am The warrant authorizing search of apartments 108,110, and 212 was signed by Judge Homer. (Gov’t Ex. 95-B (signed warrant).)
1:17 am News of the signed warrant was broadcast over the police radio: “SW signed — good to go”. (Gov’t Ex, 95-A at 3384.)
1:50 am SWAT began its entry with apartment 212. .(Gov’t Ex. 95-A at 3385.) First, loud speakers warned occupants to stay away from the windows. (Id.) Minutes later, officers fired bean bag rounds into the windows of apartment 212. (Id.)
2:07 am The door to apartment 212 was breeched. (Gov’t Ex. 95-A at 3385.) A robot was dispatched into the unit to search for people. (Id.) The robot cleared the unit except for two closed doors. (Id.) A K-9 entered and found no one. (Id.)
2:24 am Gas canisters were deployed through the front door — and from the rear yard. (Gov’t Ex. 95-A at 3386.)
2:36 am Apartment 212 was “clearfed]” by 2:36 am. (Id. at 3385 to 3386.)
3:14 am CID detectives were ordered to report to the bearcat (the SWAT utility vehicle) with gas masks, because they were “ab[ou]t to search 212.” (Id. at 3388.)
3:41 am The “search team [was] in [apartments] 108, 110, and 212.” (Id. at 3388.)
Pursuant to a search warrant, Oakland police conducted a search of 1759 Seminary Ave., Apartments 108, 110 and 212. The search of Apartment 212 was conducted by OPD Officers Milina, Rosin, and Gonzales. Gov’t Ex. 95-C. Among other things, Officer Milina found three pistols, including both handguns taken from Officer K. Gov’t Ex. 95-C. Keys to the Dodge Avenger rental car were also found in the apartment. Id. Cell phones and boxer shorts — which contained DNA con
The search warrant affidavit by Officer Jason Anderson, which is subject to a sealing order, summarized the shooting of Officer K. and presented the following facts in support of the search warrant application to search Apartments 108, 110 and 212, as redacted by the government:
Officer S. Valle received information from a confidential reliable informant that will be referred to as X in this affidavit. X told Officer Valle the following information regarding to attempt murder of Officer [K.]. X advised Officer Valle that shortly after the shooting, X received a phone call [ ]. “Tay Tay” and “Lib Dame” just shot someone in the driveway of the apartment complex. Officer Valle told your affiant that Officer Valle knows “Tay Tay” to be the street moniker for Deante Kincaid and “Lib Dame” to be the street moniker for Damien McDaniel. [] “Lib Joe” and “B.O.T.” were also in the driveway when the shooting happened. Officer. Valle told your affiant that Valle knows “B.O.T.” to be Purvis Ellis.
Officer Valle .later advised your affiant that X told Officer-Valle that [ ]. X told Valle [ ] “Tay Tay” just shot at a cop [ ] “Lib Dame” got away and fled the area after the shooting. Based oh this conversation, Officer Valle told your affiant that Valle believes that Deante Kincaid put the gun that was taken from Officer [K.] and the gun that was possibly used .to shoot him with inside Ellis’ apartment.
■Officer Valle advised your affiant that he has had several conversations with X regarding 1759 Seminary Avenue over the past few days. Valle advised that X •has told him that “Tay Tay”, “Lib Dame”, “B.O.T.”, “Lib Joe”, and “Lib Tay” []. X advised Officer Valle that “Lib Dame”, “B.O.T.”, and Lib Joe” all live in 1759 Seminary Avenue.
Officer Valle also told your affiant that he had a conversation with X regarding the shooting in the 5900 block of Foothill Boulevard. Valle advised your affiant that X told him that prior to the shooting on Foothill Boulevard, []. X told Valle that a few days before the shooting, [ ] “B.O.T.” [ ] in a Dodge Avenger four-door []. Officer Valle was aware that a four-door vehicle was used in the shooting in the 5900 block of Foothill Boulevard. [] the license plate to the Avenger [ ] was 6VEP025, which is the exact same vehicle license plate and description of the Dodge Avenger that was used in the shooting in the 5900 block of Foothill Boulevard.
Officer Valle told your affiant that several hours after Officer [K.] was shot, Valle met with X in regards to the shooting. Officer Valle told your affiant that Officer Valle showed X CRIMS booking photos of Deante Kincaid, Purvis Ellis, and Damien McDaniel. X positively identified Kincaid as “Tay Tay”, Ellis- as “B.O.T.”, and McDaniel as “Lib Dame”; Officer Valle also became aware that a Joseph Perinymon was detained during the shooting investigation of Officer [K.]. Believing that Pennymon might be “Lib Joe”, Officer Valle showed X á CRIMS booking photo of him to X. X positively identified Pennymon as “Lib Joe”. [ ]
Officer Valle told your affiant that he also obtained a blueprint of 1759 Seminary Avenue from Lt. T. Jones [ ].
Mot. Suppr. Apt. Search (doc. no. 81), Ex. A (“Def. Ex. 81-A”) (search warrant affidavit). A séparate search warrant was issued at 12:10 pm on January 22, 2013, to authorize the search of Apartment 112.
Around 11:00 am on January 22, 2013, Ellis and several other individuals were arrested by OPD Tactical Team in Apartment 112 at 1759 Seminary Ave. Mot. Suppr. Digital Devices (doc. no. 79), Ex. B (Officer Milina’s report) (“Def. Ex. 79-B”) at RD 00351. Ellis was handcuffed and taken outside to a cage car. He was searched, with his belongings placed in a manila envelope, and placed in the rear of the police car driven by..Officers Seay and Cumby. Def, Ex. 79-A. “A moment later, Ofc. R. Johnson asked if ELLIS was in possession of any mobile phones. Ofc. Fesmire told. Ofc. Johnson that ELLIS did have a phone and that it was,, with his property and inside OPD Vehicle # 1203. Sgt. G. Porritt advised that he recovered a mobile phone from ELLIS’s person when he was detained.” Id. at RD-0088.
At 11:35 am, Ellis was brought to CID and Officer Gumby gave Officer Milina Ellis’ personal belongings, including an iPhone 5 and a ZTE model 910 cell phone. Def. Ex. 79-B at RD-00351.'
An arrest warrant was issued for Ellis on January 22, 2013, 12:20 pm. Mot. Suppr. Arrest (doc. no. 77), Ex. A (“Def. Ex. 77-A”). The supporting probable cause affidavit by OPD Sergeant Nolan alleged the same background facts as the search warrant affidavit and also stated what was found during the search of the apartments:- the two Glock handguns that were taken from Officer K. were-recovered from Apartment 212, which was- "attributed to Ellis. The affiant stated that the recovery of the firearms combined with the information from the confidential informant tended to indicate that Ellis had involvement in the assault and attempted murder of Officer K. Def. Ex. 77-B. The affiant also knew from past investigations that Ellis was associated with the extremely violent Gas Team gang years ago, that his name has been associated with gangs known to commit shootings with great regularity, and that search warrants have been served on Ellis that yielded firearms in the past. The affidavit also stated that in past investigations, Ellis was the target of wiretaps.
The Ellis arrest warrant affidavit referred to a prior conviction for possession of assault rifles:
On 6Jun08, Oakland Police Lieutenant T. Jpnes executed a search warrant on a vehicle Purvis Ellis was believed to be storing weapons. 4 Assault Rifles were recovered from the trunk of the vehicle, 1995 Lexus SC 400 2D Green. The vehicle was registered to Jabulani Williams who . lived at 5944 Bromley # B. The vehicle was parked in the 5900 block of Bromley. Officers knew from the wiretaps that Ellis lived in the 5900 block of Bromley Street and he later admitted on the wiretaps that the rifles belonged to him. Ellis was later .convicted of possessing those Assault Rifles. This case is documented on OPD RD# 08-055051.
Gov’t Ex. 99-A. The Oakland Police Department records show that on June 6, 2008,- police officers contacted Ellis who was a possible suspect in a murder investigation, and arrested Ellis after conducting a pat down- search for weapons and finding suspected rock cocaine and a large amount of cash. - Police searched Ellis’ car and found a loaded 9rrim handgun under the driver’s-seat where Ellis*was sitting. Police obtained a search warrant later that day to search Ellis’ residence at 5931 Bromley Apt. A and a 1995 Lexus license 5BDY111. Police recovered 3 assault rifles from the trunk of the Lexus, and a 9mm handgun and ammunition from the apartment. Gov’t Ex. 99-B (page 25 of 44).
E. Criminal Proceedings
Ellis was charged in state' court with being a felon in possession of a firearm. Ellis’s attorney in the state-court proceedings made repeated requests for the affidavit to’ the search warrant for Apartment 212. Ellis’s then-attorney filed a motion seeking the affidavits. Not long after that motion was filed, and before the search warrant affidavits were produced, the Alameda County District Attorney’s office dismissed all charges against Ellis and he was released from custody. In December 2013, Ellis and his three co-defendants were indicted in the present case by the federal ' government. Defendants are charged as follows:
Count 1: All defendants charged with Racketeering Conspiracy (18 U.S.C. 1962(d)) to conduct the affairs of the Sem City enterprise through a pattern of racketeering activity consisting of acts of murder; robbery; distribution and possession with intent to distribute controlled 'Substances; sex trafficking- of minors; enticement of minor to engage in prostitution; fraud in connection with identification documents; and fraud in connection.with access devices.
Count 1 also gives notice of special sentencing factors: (1) conspiracy to commit murder of Victim 1 on January 20, 2013; and (2) attempted first degree murder of Victim 1.
Count 2: All defendants charged -with Attempted Murder in Aid of Racketeering (18 U.S.C. § 1959(a)(5) and 2) for the attempt to murder Victim 1 ■ on January 20, 2013, for'the purpose of gaining entrance to, maintaining and increasing position in Sem City.
Count 3: All ■ defendants charged with Assault with a Dangerous Weapon/Resulting in Serious Bodily Injury in Aid of Racketeering (18 U.S.C. § 1959(a)(3) and 2) for the January 20, 2013 assault on Victim 1 with a dangerous weapon, resulting in serious bodily injury, for the purpose of gaining entrance to, maintaining and increasing position in Sem City.
Count 4: All defendants charged with Maiming in Aid of Racketeering (18 U.S.C. § 1959(a)(2) and 2) for maiming Victim 1 on January 20, 2013, for the purpose of gaining entrance to,, maintaining and increasing position in Sem City.
Count 5: All defendants charged with Use/Possession/Brandish/Discharge or Firearm in Furtherance of Crime of Violence (18 U.S.C. § 924(c)(1)(A) and 2) for willfully and knowingly using and carrying and brandishing and ■ discharging a firearm on January 20, 2013, during a crime of violence, i.e., attempted murder, assault with -deadly weapon, and maiming in aid of racketeering.
Count 6: Defendants Kincaid, McDaniel, and Pennymon charged with Assault with a Dangerous Weapon/Resulting in Serious Bodily Injury in Aid of Racketeering (18U.S.C. § 1959(a)(3) and 2) for assaulting Victim 2 on January 21, 2013, for the purpose of gaining entrance to, maintaining and increasing position in Sem City.
Count 7: Defendants Kincaid, McDaniel, and Pennymon charged with Use/Possession/Brandish/Discharge of Firearm in Furtherance of Crime of Violence (18 U.S.C. § 924(c)(1)(A) and 2) for the assault on Victim 2 (as charged in Count 6).
Count 8: Defendant Kincaid charged as Felon in Possession of Firearm (18 U.S.C. § 922(g)(1)) for possession of 3 semiautomatic handguns on January 21, 2013.
Count 9: Defendant McDaniel charged . as Felon in Possession of Firearm (18 U.S.C. § 922(g)(1)) for possession of 3 semiautomatic handguns (2 of which are also charged as being in Kincaid’s possession) on January 21, 2013.
II. Motions for Bill of Particulars
All defendants move for a bill of particulars: Ellis filed a motion for a bill of particulars on his own behalf; McDaniel filed a motion for a bill of particulars on behalf of all defendants; and Kincaid filed a motion to dismiss, or, in the alternative, for a bill of particulars, on behalf of all defendants. The government filed a consolidated opposition brief to address all three motions for bill of particulars. Doc. no. 104. Because the issues raised in the three motions overlap, the court addressed the motions collectively at the hearing and ruled on the motions as summarized below.
A. Racketeering Counts
1. Defendants’ motion for a bill of particulars to specify when each defendant joined the alleged conspiracy is DENIED. Defendants are not entitled to a bill of particulars to seek “complete discovery of the government’s evidence, which is not a purpose of the bill of particulars.” United States v. Giese,
2. Defendants’ request for the names of alleged members, shooters, leaders, employees and associates of Sem City is DENIED. The Ninth Circuit has expressly held that a bill of particulars is not required to identify some of the exact details sought by defendants, holding that a bill of particulars is not warranted to provide the following kinds of details: “(1) to obtain the names of any unknown cocon-spirators; (2) to determine the exact date on which the conspiracy allegedly began; and (3) to delineate all other overt acts that comprised the charged activity.” United States v. DiCesare,
3. Ellis’s motion for a bill of particulars to- identify' the “specific effect on interstate commerce of the alleged enterprise” is DENIED. Ellis' Mot. Bill Part, (doc. no. 83) at 1. Ninth Circuit authority does not require that the indictment plead evidentiary detail such as how interstate commerce was interfered with, or the theory of interstate impact. United States v. Rodriguez,
4. Defendants’"motion for a bill of particulars is DENIED with respect to their request for identifying information about the racketeering acts which comprised the enterprise’s pattern of racketeering activity, as alleged in Count One— Racketeering Conspiracy. The court determines that the indictment sets forth the elements of the offenses and sufficiently alleges a violation of § 1962(d). See United States v. Martinez,
a. Count Two alleges that Sem City constituted an ongoing criminal organization and racketeering enterprise engaged in racketeering activity, and defendants Ellis, Kincaid, McDaniel and Pennymon attempted to murder Victim 1 for the purpose of maintaining their position in Sem City.
b. Count Three alleges that, in aid of racketeering, all four defendants assaulted Victim 1 with a dangerous weapon resulting in serious bodily injury.
e. Count Four alleges that, in aid of racketeering, all four defendants maimed Victim 1.
d. Count Six alleges that Kincaid, McDaniel and Pennymon assaulted Victim 2 (Officer K.) with a dangerous weapon resulting in serious bodily , injury, in aid of racketeering.
See Fernandez,
B. Coconspirator Statements
Defendants’ motions for a bill of particulars to specify when each defendant joined Sem City, to allow the defense to determine whether coconspirator statements may be admitted against them pursuant to FRE 801(d)(2)(E), is DENIED. In advance of trial, the court-will issue its standard protocol requiring the- government to provide notice of coconspirator statements to be introduced at trial. The protocol will be similar, but not necessarily identical, to the protocol established by the court in United States v. Zaragoza, et al., No. CR 08-83 PJH, doc. no. 576 (Amended Pretrial Order, July 29, 2010). Given that a trial date has not yet been set, and discovery is. ongoing, disclosure of cocon-spirator statements is not required at this juncture.
C. Aiding and Abetting Allegations
Defendants’ motions for a bill of particulars to specify which defendants are principals, and who are aiders and abettors, are DENIED. The indictment may charge a defendant with being both a principal and an aider and abettor. United States v. Armstrong,
D. Special Sentencing Factors
Defendants’ motion for a bill of particulars to provide notice of the government’s theory of criminal liability, in order to prepare and defend against the special sentencing factors, is DENIED. The government is not required to disclose its theory of liability as to each defendant in a bill of particulars, as long as full discovery is provided to the defense. United States v. Buckner,
E. Section 924(c)(1) Counts
Defendants’ motion for a bill of particulars to specify the firearm(s) charged in Counts Five and Seven, and to specify whether a firearm was used, brandished or discharged, and by whom, is DENIED. The facts alleged in the indictment, including the specific incidents when the firearms were allegedly used in furtherance of a crime of violence, as well as the police reports related to each incident and the search returns specifying which guns were recovered, are sufficient to put defendants on notice of the charges against them.
F.Section 922(g)(1) Counts
Defendants’ motion for a bill of particulars to specify the prior felony conviction that Kincaid and McDaniel suffered, as alleged in Counts Eight and Nine, is DENIED in light of the government’s undisputed representation that it has provided discovery regarding defendants’ prior criminal history, including their rap sheets.
III. Motions for Discovery and Disclosures
A. Motion for Disclosure of 404(b) Evidence and for Disclosure of Identity of Confidential Informant
At the hearing on defendants’ motion to compel discovery, for disclosure whether the government will introduce evidence of Ellis’s prior arrest or other acts pursuant to FRE 404(b), and for disclosure of the confidential informant’s identity, the government gave notice that it would seek introduction of defendant Ellis’s prior arrests pursuant to FRE 404(b) and on other grounds. The government indicated that it will produce wiretap evidence related to the June 2008 investigation of Ellis, which led to his arrest and a conviction, after conducting confidentiality review. As the co.urt ordered at the hearing, the government shall provide the wiretap evidence within thirty days, and all other potential FRE 404(b) evidence related to Ellis’s pri- or arrests and conviction, within sixty days, of the hearing.
Now that the court understands the extent to which the government has relied on the content of the Cl’s communications in opposition to several motions to suppress, and defendants have articulated a need for disclosure of the content of the Cl’s communications to challenge ‘ the probable cause affidavits, the court will reconsider defendants’ motion for disclosure. The court is concerned with the lack of a record addressing the advisability of continued nondisclosure and will reopen the briefing to give the parties an opportunity to address the factors that the court must consider in determining whether an informant’s identity and/or communications should be disclosed, such as (1) the degree of the informant’s involvement in the criminal activity; (2) the relationship between the defendant’s asserted defense and the likely testimony of the informant; and (3) the government’s interest in nondisclosure. United States v. Gonzalo Beltran,
As ordered at the hearing, the government shall file a supplemental brief to state its position on the record, with supporting legal authority and factual assertions, for continuing to withhold the confidential informant’s identity and/or communications in light of the arguments made in the pending motions to suppress. These issues are not fully addressed by either party in the motions for disclosure. The government is directed to address the following issues in its supplemental brief:
• What is the factual basis for the government’s concern for the confidential informant’s safety if his/her identity or communications are disclosed?
• Did the confidential informant participate in any of the crimes charged?
• Will the confidential informant testify at trial as a percipient witness?
• Was the confidential informant a percipient witness? '
• Does the confidential informant have knowledge of any exculpatory evidence?
• If the confidential informant is expected to testify at trial, is there impeachment material pertaining to the informant?
• Even if the confidential informant will not testify, will the government introduce at trial any evidence provided by the confidential informant in support of the probable cause affidavits?
• What is the legal authority for limiting defendants’ ability to challenge the probable cause determination by withholding not only the confidential informant’s identity, but also his/her communications with law enforcement? ■
The court is particularly concerned about the following issue: ■ even if the informant was not a percipient witness to either of the shootings alleged in this case, it is important to know if the informant was a witness, to any other wrongs, acts or crimes that comprise the racketeering activity. Because those wrongs, acts or ■crimes are not described in the indictment or elsewhere, it is impossible to understand the informant’s full role and to balance the interests required under Roviaro v. United States,
B. Motion for Search and Disclosure of Electronic Surveillance (doc. no. 89)
Defendants’ motion for an order compelling the government to search for and disclose all information related to electronic surveillance of defendants or any evidence obtained related to this case as a result of electronic surveillance is DENIED AS MOOT in light of the government’s disclosures. The parties are ordered to meet and confer on further discovery requests related to' the disclosures about the use of electronic surveillance. The government shall complete production responsive to those requests within sixty'days of the hearing, unless the parties agree to a later deadline.
IV. Motions to Suppress
A. Eyewitness Identifications
1. As stated on the record, Pen-nymon’s motion to suppress eyewitness identifications is DENIED. Doc. no. 71. Having reviewed the photo arrays that included Pennymon’s photo, the court finds that all the individuals in the February 21 photo array appear to be in the similar age group, arid at' least 4 of the 6 have a similar complexion. The court concludes that' Pénnymon did not stand out among the other individuals in the photo array and that the identification procedure was not impermissibly suggestive. In particular, the court finds that the fact that hoods were added to all the photos in the second photo array made the identification procedure inore reliable, not suggestive. The officer’s inability to identify Pennymon from the first photo array on the night of the shooting was reasonable under the circumstances, including morphine treatment the officer was receiving, and does not render the later identification unreliable.
Even if the second photo array was somehow suggestive, the court determines that the identification was nonetheless reliable under the factors set forth in Neil v. Biggers,
2. Ellis’s motion to suppress pretrial and in-court identifications remains pend
B. Motion to Suppress Evidence Seized from Illegal Search Conducted on Residential Curtilage
1. No Fourth Amendment Violation
Defendants’ motion to -suppress all evidence seized from, an illegal search conducted on residential curtilage is DENIED,.- Doc. no. 73. Defendants contend that Officer. K. trespassed by entering uninvited onto the apartment driveway and parking lot, which they .contend lie within the curtilage of the apartment building, in violation of the Fourth Amendment under the trespass test as set forth in United States v. Jones, — U.S. -,
Although there is no Ninth Circuit authority post-Jones addressing an apartment tenant’s right to exclude law enforcement and other non-tenants from common areas under .the trespassory test, the Ninth Circuit has expressly held that “an apartment dweller has no reasonable expectation of privacy in the .common areas of the building whether the officer trespasses or not.” United States v. Nohara,
Defendants cite authority under state and local civil law in support of their argument that tenants have a possessory interest in common areas of an apartment building. However, the state court decisions cited by defendants do not extend a tenant’s right to exclude others to encompass common areas beyond their own leased apartment or residence. See Friends of the Trails v. Blasius,
In support of their argument that, under California law, tenants of an apartment complex have possessory interests in common areas, defendants cite a city ordinance defining a “Rental Unit” as “any unit'in any real property ... including the land appurtenant thereto, that is rented or available for rent for residential use or occupancy ... together with all housing services connected with use or occupancy of such property, such as common areas and recreational facilities held out for use by the tenant.” Reply (doc. no. 116) at 4 (citing Oakland Municipal Code, Code of Ordinances, Section 8.22.340 (Ord. 12537 § 1 (part), 2003)
Similarly, in People v. Howard,
As defendants conceded during oral argument, a shared driyeway to an apartment building or a shared parking lot is not protected as curtilage under established authority. Defendants cite no authority extending Fourth Amendment protection to the shared driveway or parking lot of an apartment complex. To support their argument that Officer K’s entry into the driveway and parking lot was a tres-passory search, defendants cite state court authority recognizing the right of private parking lot owners and building tenants to prohibit trespass or pursue prosecution for trespass. However, these authorities do not address tenants’ possessory rights in, or their right to exclude others from, a common driveway or shared parking lot such as the common areas at issue here, particularly where the tenants have not shown that they were authorized to restrict entry to the shared parking lot or use of the parking spaces. See Planned Parenthood v. Wilson,
’ Even if defendants had standing to raise a Fourth Amendment challenge and Officer K.’s entry into the driveway and parking lot constituted a trespass, the Fourth Amendment does not protect against mere technical trespass. As Justice Scalia, writing for the majority of the Court in Jones, noted, “our theory is not that the Fourth Amendment is concerned with ‘any technical trespass that led to the gathering of evidence.’ The Fourth Amendment protects against trespassory searches only with regard to those items (‘persons, houses, papers, and effects’) that if enumerates.” Jones,
The Court’s theory' seems to be that the concept of a search, as originally understood, comprehended any' technical trespass that led to the gathering of evidence, but we know that this • is incorrect. At common law, any unauthorized intrusion on private property was actionable, see Prosser & Keeton 75; but a trespass on open fields, as opposed to the ‘curtilage’ of a home, does not fall within the scope of the Fourth Amendment because private property outside the curtilage is not part of a ‘housje]’ within the meaning of the Fourth Amendment. ■
Jones,
In light of this authority recognizing that the Fourth Amendment has been
2. Independent Source Doctrine
Alternatively, the motion to suppress is DENIED on the separate ground that law enforcement’s discovery of the getaway car’s presence in the parking lot was independent of Officer K.’s observation of the getaway car, when police responded to the shooting of Officer K. in the driveway. See Nix v. Williams,
The court will address defendants’ challenges to the search warrants in a separate order ruling on the pending motions to suppress.
y. CONCLUSION
Having ruled on the motions for a bill of particulars; the motion for discovery and disclosure of Rule 404(b) evidence; the motion for search and disclosure of electronic surveillance; the motion to suppress eyewitness identifications filed by Pennymon; and the motion to suppress evidence seized from illegal search conducted on residential curtilage, the court will rule on the motions that remain pénding' as fob lows:
(1) Upon submission of supplemental briefs and further oral argument on defendants’ motion for disclosure of the confidential informant, whose communications to law enforcement were relied upon in the search warrant and arrest warrant affidavit^, the court will, be prepared to rule on the motions to suppress evidence seized during the search of Apartment 212, evidence seized pursuant to Ellis’s arrest, and evidence seized from digital devices. .
(2) Upon submission of supplemental materials related to the transcripts ofaudio recordings of the photo and video lineups, the motion to suppress pretrial and in-court identifications, filed by Ellis, will be taken under submission without further argument.
(3)Upon ruling on defendants’ request for an evidentiary hearing, the court will rule on the pending application for issuance of a Rule 17(c) subpoena.
IT IS SO ORDERED.
Notes
. Available at https://www.municode.coin/ libraiy/ca/oakland/codes/code_of_ordinances? nodeId=TIT8H ESA-CH8.22REREADEV (last visited Aug. 14, 2015).