United States v. Ashburn

• Citation: 76 F.Supp.3d 401
• Decision Date: 30 December 2014
• Docket Number: No. 13–CR–0303 NGG.,13–CR–0303 NGG.
• Parties: UNITED STATES of America v. Yassa ASHBURN, Jamal Laurent, and Trevelle Merritt, Defendants.
• Court: U.S. District Court — Eastern District of New York

76 F.Supp.3d 401

UNITED STATES of America

v.Yassa ASHBURN, Jamal Laurent, and Trevelle Merritt, Defendants.

No. 13–CR–0303 NGG.

United States District Court, E.D. New York.

Signed Dec. 30, 2014.

Berit Winge Berger, M. Kristin Mace, Margaret Elizabeth Lee, Seth David Ducharme, Zainab Ahmad, United States Attorneys Office, Brooklyn, NY, Gina Marie Parlovecchio, U.S. Attorney Office, New York, NY, for United States of America.

Donna R. Newman, Law Office of Donna R. Newman, PA., Jeremy F. Orden, Jeremy F. Orden, Esq., New York, NY, Howard Greenberg, Howard Greenberg, Esq., Brooklyn, NY, for Defendants.

MEMORANDUM & ORDER

NICHOLAS G. GARAUFIS, District Judge.

I. INTRODUCTION

This Memorandum and Order addresses Defendant Jamal Laurent's Omnibus Pre–Trial 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 commercial robberies in Brooklyn and elsewhere beginning in 2007 through 2011. (Fourth Superseding Indictment¹ (the “Indictment”) (Dkt. 237); Gov't Mem. in Opp'n (Dkt. 180) at 1.) According to the Government, Six Tre is part of the Folk Nation, a nationwide gang founded in Chicago, Illinois in the early 1990s. (Gov't Mem. in Opp'n at 1.) The Government alleges that Six Tre has approximately 20 to 25 identified members and has been operating in and around the Ebbets Field housing projects in the Flatbush section of Brooklyn, New York for several years. (Id. ) Specifically, Defendants are charged with being directly responsible for three murders and two attempted murders, as well as several “smash-and-grab” robberies of high-end jewelry stores (id. at 3), and robberies of individuals solicited via the Craigslist website—among other crimes—between April 2008 and October 2011. (See generally Indictment.)

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”),² which include, among others: conspiracy to murder members of a rival Crips gang (RA 1); the murders of Courtney Robinson on or about April 20, 2008, and Brent Duncan on or about June 19, 2010 (RAs 2, 4); the attempted murder of an individual known as John Doe # 2 on or about July 7, 2010 (RA 7); Hobbs Act robbery conspiracy targeting employees of various jewelry stores (RA 3); Hobbs Act robberies and a robbery conspiracy concerning individuals targeted through Craigslist (RAs 5, 6, 8, 9); and robbery resulting in the murder of Dasta James on or about January 28, 2011 (RA 12). (Id. ¶¶ 7–34.) In addition, these defendants are charged in Counts Three through Fourteen with various federal crimes predicated on the same or similar conduct at issue in the Racketeering Acts. Laurent, in particular, is charged with murder in-aid-of racketeering; assault with a dangerous weapon in-aid-of racketeering; and Hobbs Act robbery and robbery conspiracy. (Id. at ¶¶ 35, 39–46.)

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 case-in-chief and the Third Superseding Indictment; and (6) compelling the Government to provide discovery under Federal Rule of Criminal Procedure 16 and Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). (See Not. of Mot. at 1; Mem. of Law in Support of Def. Laurent's Omnibus Pre–Trial Mots. (“Omnibus Mot.”) (Dkt. 172).) Merritt joins Laurent's motion to sever their trials. (Oct. 2, 2014, Ltr.(Dkt. 191).) In the Memorandum and Order that follows, the court addresses each motion in turn.

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) 214–4017 (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 4017 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 1.)³ Witnesses, including employees and customers, reported that two black males had smashed the display cases, grabbed jewelry, and left the store. (Id. ) According to witness reports and video surveillance, two masked men entered the store, and one of them began to smash the watch display cases with a sledgehammer, while the other one removed the watches from the displays.⁴ (Id. ) The two men then fled from the store, but dropped the sledgehammer (id. at 3), and were observed entering a car bearing the license plate number EYD2881. (Id. ) WHPD Officer Mark Puglielli, who was investigating the robbery, subsequently learned that a 1998 Nissan Maxima bearing that license plate had been reported to the New York Police Department (“NYPD”) in Brooklyn, New York as having been stolen. (Id. ) On June 28, 2010, the NYPD located the vehicle, which had been towed and impounded at a lot in Brooklyn after having accumulated two parking tickets. (Id. ) During a search of the vehicle, to which the owners consented, WHPD officers recovered a small piece of white paper bearing the telephone number (917) 214–4017, which they determined was registered to cellular service provider T–Mobile. (Id. at 4–5, 6.) The owners of the vehicle confirmed that the piece of paper did not belong to them and had not been in the vehicle before it was stolen. (Id. at 4.)

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...