United States v. Barret

• Citation: 824 F.Supp.2d 419
• Decision Date: 16 November 2011
• Docket Number: No. 10–cr–809 (S–2) KAM.,10–cr–809 (S–2) KAM.
• Parties: UNITED STATES of America v. Christopher BARRET, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

824 F.Supp.2d 419

UNITED STATES of America

v.Christopher BARRET, et al., Defendants.

No. 10–cr–809 (S–2) KAM.

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

Nov. 16, 2011.

Jack Gerald Goldberg, Marion A. Seltzer, Marion Seltzer, Esq., Barry S. Turner, Barry S. Turner. P.C., Joel Winograd, Winograd & Winograd, P.C., Poonam Kumar, Sean Hecker, Debevoise & Plimpton LLP, Curtis Jordan Farber, Curtis J. Farber, Esq., Scott Lloyd Fenstermaker, The Law Offices of Scott L. Fenstermaker, Margaret M. Shalley, Fasulo, Shalley & DiMaggio, LLP, Michael H. Sporn, Eric Michael Schlosser, New York, NY, Sally J.M. Butler, Steve Zissou & Associates, Bayside, NY, Joseph Anthony Gentile, Frankie & Gentile, P.C., Mineola, NY, Scott Brettschneider, Uniondale, NY, Stuart J. Grossman, Grossman & Rinaldo, Forest Hills, NY, Susan Gail Kellman, Susan G. Kellman, United States Attorneys Office, U.S. Attorney's Office, Brooklyn, NY, for Defendant.

SreeVamshi Reddy, Tyler Joseph Smith, Steven Lawrence Tiscione, United States Attorneys Office, Brooklyn, NY, for Plaintiff.

MEMORANDUM AND ORDER

KIYO A. MATSUMOTO, District Judge:

A three-count superseding indictment (the “Superseding Indictment”), filed on August 4, 2011, charges defendants Christopher Barret (“Barret”), Kareem Forrest (“Forrest”), Ryan Anderson (“Anderson”), Joseph Donaldson (“Donaldson”), Kerry Gunter (“Gunter”), Charles Jones (“Jones”), LaToya Manning (“Manning”), Leemax Neunie (“Neunie”), Vincent Quinones (“Quinones”), Leon Scarlett (“Scarlett”), Andre Wilson (“Wilson”) and FNU LNU also known as “Sox” ¹ (collectively, “defendants”) with one count of conspiracy to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), ² 841(b)(1)(A)(vii) ³ and 846,⁴ and 18 U.S.C. § 3551 et seq.⁵ It also charges all defendants except Mitchell with one count of distribution of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(vii), and 18 U.S.C. §§ 2 ⁶ and 3551 et seq. (ECF No. 210, Superseding Indictment (“ S–2”) ¶¶ 1–3.) In addition, the Superseding Indictment charges Barret, Forrest, Anderson, Gunter, Jones, Quinones, Scarlett, and Mitchell with one count of possession of a firearm in relation to drug trafficking in violation of 18 U.S.C. §§ 924(c)(1)(A), ⁷ 2 and 3551 et seq. The Superseding Indictment also contains criminal forfeiture allegations pursuant to 21 U.S.C. §§ 853(a), (p); ⁸ 18 U.S.C. § 924(d); ⁹ and 28 U.S.C. § 2461(c). ¹⁰ (S–2 ¶¶ 4–7.)

Presently before the court are the following pre-trial motions filed by Anderson, Barret, Forrest, Jones, Manning and Scarlett (collectively, “movants”).

Anderson moves for (a) inspection and release of the grand jury minutes; (b) suppression of Anderson's post-arrest statements as fruit of his unlawful arrest; (c) dismissal of the Superseding Indictment on grounds that it alleges multiple conspiracies; and (d) severance of his trial from that of his co-defendants. (ECF No. 250, Defense's Pretrial Motions and Memorandum of Law in Support by Ryan Anderson (“Anderson Br.”).) ¹¹

Barret moves (a) to strike his aliases from the indictment; (b) to compel the provision of all discovery and evidence pursuant to Federal Rule of Criminal Procedure 16 and to direct the government to specify the relevant dates and times of pole camera and video surveillance images it intends to offer at trial; (c) to compel the provision of exculpatory and “potentially favorable evidence” pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); (d) for a bill of particulars; (e) to compel the government to reveal “specific physical evidence” that it intends to present at trial; (f) for dismissal of the indictment and a Cardona hearing; (g) for severance of his trial from that of his co-defendants; (h) for dismissal of the indictment if certain surveillance images were destroyed by the government; (i) to compel early disclosure of Rule 404(b) evidence; (j) to compel disclosure of Jencks Act/3500 material and the government's witness list; (k) to compel the government to comply with Federal Rule of Evidence 104 in advance of trial; ( l ) to compel the government to identify informants and unindicted co-conspirators; (m) to require a hearing with respect to the authenticity, audibility and visual clarity of “any of any and all recorded statements and video images to be introduced at trial”; and (n) a hearing to determine whether certain co-conspirator statements may be admitted against him. (ECF No. 265–2, Memorandum in Support of Defendant Barret's Pre–Trial Motions (“Barret Br.”).) ¹²

Forrest moves for a bill of particulars. (ECF No. 257–3, Memorandum of Law in Support of Pre–Trial Motions by Kareem Forrest (“Forrest Br.”).)

Jones moves for (a) a bill of particulars and (b) severance of his trial from that of his co-defendants. (ECF No. 261–2, Memorandum of Law in Support of Defendant Charles Jones' Pretrial Motions (“Jones Br.”).)

Manning moves for (a) severance of her trial from that of her co-defendants; and (b) suppression of her post-arrest statements as fruit of her unlawful arrest. (ECF No. 256–2, Memorandum of Law in Support of Motion for Miscellaneous Relief by LaToya Manning (“Manning Br.”); ECF No. 280, Defendant Latoya Manning's Reply Memorandum in Support of Motion for Miscellaneous Relief (“Manning Reply”).)

Scarlett moves for (a) severance of his trial from that of his co-defendants; (b) a bill of particulars; and (c) a finding that the search warrant related to “subject telephone 11” was legally insufficient. (ECF No. 253, Memorandum of Law in Support of Defendant Leon Scarlett's Pretrial Motion (“Scarlett Br.”).)

The court will address Anderson's motion to suppress separately, having recently conducted a suppression hearing, upon Anderson's showing by affidavit that a hearing was arguably warranted. The government opposes all movants' motions. ( See generally ECF No. 276, Memorandum in Opposition (“Gov't Opp'n”).) The court has carefully reviewed the parties' submissions, and for the reasons set forth below, the movants' remaining motions are granted in part and denied in part.

BACKGROUND

I. Charges

The allegations in the Superseding Indictment, the Complaint and the government's submissions are as follows:

Between November 2006 and October 2010, defendants allegedly conspired to distribute and possess with intent to distribute one thousand kilograms or more of marijuana. (S–2 ¶ 1.) In addition, the Superseding Indictment charges Barret, Forrest, Gunter, Anderson, Jones, Quinones, Scarlett and Mitchell with knowingly and intentionally carrying one or more firearms during and in relation to the drug trafficking conspiracy. ( Id. ¶ 3.)

In furtherance of the conspiracy, defendants allegedly mailed packages containing marijuana from Arizona and California to two Queens mailbox drop locations rented to Andre Wilson. (ECF No. 1, Criminal Complaint (“Compl.”) ¶¶ 2–3.) When the packages arrived in Queens, co-conspirators picked up the packages, removed the marijuana from the boxes, stored the drugs in various stash houses and distributed them to street-level distributors for final sale. ( Id. ¶ 2.) Members of the conspiracy allegedly mailed proceeds from the illicit drug sales from the Eastern District of New York to their suppliers in California and Arizona through mail, electronic transfer of funds, or courier. ( Id.)

The Drug Enforcement Administration (“DEA”), United States Postal Inspection Service (“Postal Inspectors”), and various local law enforcement agencies investigated this Queens-based drug distribution organization, which was allegedly led by Barret, for approximately one year. ( Id.) In January 2010, the Postal Inspectors intercepted two large, brown cardboard boxes measuring approximately 18 x 18 x 18 inches (the “Intercepted Packages”) that had arrived at Wilson's mailbox drop locations. ( Id. ¶ 4.) Upon executing a search warrant on the Intercepted Packages, the Postal Inspectors discovered that the boxes contained a total of approximately forty pounds of marijuana. ( Id.)

In August 2010, DEA agents installed a pole camera outside a suspected stash house in Queens, which was identified as the residence of Barret and his wife, Manning (the “Barret Residence”). ( Id. ¶ 5.) Through that pole camera and other surveillance evidence, investigating agents observed numerous individuals—including the defendants—enter and exit the Barret Residence carrying brown cardboard boxes that closely resembled the Intercepted Packages. ( Id.)

During a one-month period between August 28, 2010 and September 30, 2010, law enforcement officers tracked twenty-three separate packages shipped by members of the organization to Wilson's mailbox drop locations. ( Id. ¶ 7.) Pole camera and physical surveillance revealed that in each instance, Wilson delivered the packages from the mailbox drop locations to Barret's residence, where individuals—including Barret at times—unloaded the boxes. ( Id.) The complaint alleges that each box contained approximately twenty pounds of marijuana. ( Id.)

Other surveillance revealed that individuals left multiple large garbage bags and stacks of flattened cardboard boxes at the curb of the Barret Residence for trash collection. ( Id. ¶ 11.) Surveilling agents believed that the discarded items contained packing materials used in the shipments of marijuana to Wilson's mailbox drop locations. ( Id.)

Several searches of the trash items taken from the front curb of the Barret Residence yielded garbage bags that contained small amounts of a substance that later field-tested positive for marijuana; paraphernalia such as rubber bands and “plastic strips from vacuum-sealed foodsaver bags,” which drug dealers allegedly often use to package drugs; and styrofoam peanuts, allegedly used to cushion the marijuana in the cardboard boxes shipped from Arizona and California to Wilson's mailbox drop locations. ( Id. ¶¶ 9, 12.)

The Superseding Indictment also charges all defendants except...