United States v. Cousin

• Decision Date: 02 February 2022
• Docket Number: CRIMINAL 20-10071-ADB
• Parties: UNITED STATES OF AMERICA, v. KEITH COUSIN and RICO PERRY, Defendants.
• Court: U.S. District Court — District of Massachusetts

UNITED STATES OF AMERICA,
v.
KEITH COUSIN and RICO PERRY, Defendants.

CRIMINAL No. 20-10071-ADB

United States District Court, D. Massachusetts

February 2, 2022

MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION TO COMPEL (DOCKET ENTRY # 182

MARIANNE B. BOWLER, UNITED STATES MAGISTRATE JUDGE

Defendants Keith Cousin (“Cousin”) and Rico Perry (“Perry”) seek disclosures responsive to 35 requests in a May 10, 2021 discovery letter (Docket Entry # 168) including: (1) unredacted information relative to Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) reports and documents; (2) Cousin's criminal history records and related information; (3) communications between ATF and the Boston Police Department (“BPD”) and BPD reports; and (4) information regarding a confidential informant (“CI”).^[1] (Docket Entry # 182). Cousin and Perry (“defendants”)

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submit that the information in one or more requests is: (1) “material to preparing the[ir] defense” under Fed. R. Crim. P. 16(a)(1)(E) (“Rule 16(a)(1)(E)”); (2) exculpatory and/or impeachment material under Brady v. Maryland, 373 U.S. 83, 87 (1963) (“Brady”), and Giglio v. United States, 405 U.S. 150, 154 (1972) (“Giglio”); and (3) necessary to challenge “warrant affidavits” in “Franks motions” (Docket Entry # 182, pp. 17, 27, 33)^[2] and to support motion(s) to dismiss (Docket Entry # 182, p. 27) and “motions to suppress the cell phone evidence seized without a warrant” when “agents” accessed contents of Perry's cell phone and Cousin's cell phone during their arrest (Docket Entry # 182, pp. 5, 19).^[3]

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Relatedly, defendants maintain that one or more requests are relevant and material to defenses they expect to assert, namely, “entrapment, outrageous government misconduct, selective prosecution and enforcement, and vindictive prosecution.” (Docket Entry # 182, p. 9). As set out in the factual background, defendants were unwitting participants in an undercover ATF fictitious sting operation. An Indictment charges defendants with conspiracy to commit robbery in violation of the Hobbs Act, 18 U.S.C. § 1951, and conspiracy to distribute and possess with intent to distribute cocaine in violation of 21 U.S.C. § 846. (Docket Entry # 17).

In a 57-page opposition, the government addresses the requests and, more broadly, the above defenses as an inadequate basis for the discovery. (Docket Entry # 190). After conducting a hearing, this court took the motion (Docket Entry # 182) under advisement. More than two months later, defendants filed a supplemental memorandum without seeking leave of court. See L.R. 7.1(b)(3). Notwithstanding the violation of L.R. 7.1(b)(3), this

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court will consider the memorandum given the absence of an objection from the government.

FACTUAL BACKGROUND^[4]

In October 2019, ATF initiated an investigation of Cousin based on information the CI provided to Agent Jacobsen and corroborated by a further investigation of Cousin. (Docket Entry # 182-2) (Docket Entry # 182-3, ¶¶ 6-14) (Docket Entry # 182-4, ¶¶ 6-10). The case initiation report sets out the information and summarizes Cousin's criminal history.^[5] Relative thereto, the CI informed Agent Jacobsen that Cousin was a member of the Columbia Road street gang and recently released from jail after being “charged with Murder and found Not Guilty in a jury trial

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in May 2019.” (Docket Entry # 182-2, ¶ 2).^[6] An Associate Justice of Massachusetts Superior Court allowed Cousin's motion for a required finding of not guilty during the May 2019 jury trial.^[7] (Docket Entry # 46-4, p. 1) (Docket Entry # 182-4, ¶ 6).

As stated in the case initiation report, the CI described Cousin as a violent and unpredictable member of the Columbia Street gang who previously committed and continues to commit robberies and home invasions in Boston. (Docket Entry # 182-2, ¶ 2) (Docket Entry # 182-3, ¶ 7). Regarding the CI's reference to home invasions, the report describes an October 20, 2019 home invasion in which Cousin “is considered a person of interest by BPD Detectives in this incident.”^[8] (Docket Entry # 182-2, ¶ 5).

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In full, the relevant paragraph reads:

On October 20, 2019, BPD responded to a home invasion (BPD Investigation #) where four black males forced their way into a residence with firearms and zip-tied the occupants (to include children and elderly). Wearing latex gloves, the males were in the process of taking cell phones

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and smart watches away from the occupants when officers arrived at the residence. Two suspects were arrested and two fled the scene. Three firearms were recovered from the suspects at the residence. The description provided for one of the fleeing suspects matches the description of COUSIN, to include a detailed account of a chipped tooth similar to COUSIN. COUSIN is considered a person of interest by BPD Detectives in this incident.

(Docket Entry # 182-2, ¶ 5) (emphasis added).

Agent Jacobsen's investigation included reaching out to BPD detectives who conveyed that Cousin “has a long criminal history of violent crime, firearm possession, and armed robberies.”^[9] (Docket Entry # 182-2, ¶ 1). The case initiation report recites the following:

7. In March of 2009, BPD obtained a warrant for COUSIN for Assault and Battery, and Threats to Commit a Crime (BPD Investigation # __). Upon his arrest and during the booking search, COUSIN was found to have a black ski mask and two gloves with the fingers cut off.

8. In May of 2009, COUSIN was convicted of Assault and Battery with a Dangerous weapon after stabbing a person during a robbery (BPD Investigation # ___). BPD police reports state that COUSIN approached the victim on foot, a fight ensued, and COUSIN stabbed the victim before fleeing.^[10]

9. In December of 2005, COUSIN was convicted of Possession

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of a Firearm after BPD officers observed COUSIN carrying a sawed-off shotgun^[11] into a vacant lot known for drug activity (BPD Investigation #). At the sight of law enforcement, COUSIN fled on foot and led officers in a foot pursuit through Columbia Road street gang territory before being apprehended.

10. In May of 2002, COUSIN was convicted of Armed Robbery and Assault with a Dangerous Weapon (BPD Investigation #___).^[12] The victim of the robbery who was walking down the street at the time . . . stated that COUSIN, wearing all black, lifted up his shirt revealing a handgun.

11. In November of 2000, COUSIN was convicted of Armed Robbery.^[13] BPD police reports (BPD Investigation #___) state that COUSIN approached a person on foot, [and] brandished a knife located on his hip before robbing the victim and fleeing the area.

(Docket Entry # 182-2, p. 3).

Agent Jacobsen's investigation corroborated the CI's depiction of Cousin as a gang member and “further investigation”

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corroborated Cousin's long criminal history of committing robberies and violent acts. (Docket Entry # 182-4, ¶¶ 7-8). The investigation showed Cousin's first arrest in 2000 as a juvenile for armed robbery and subsequent arrests on 34 charges. (Docket Entry # 182-4, ¶ 7). Based on a records check of the Massachusetts Board of Probation, Agent Jacobsen determined Cousin had three convictions and four juvenile adjudications.^[14] (Docket Entry # 182-4, ¶ 8). Specifically, they comprise of:

2010 convictions for possession of a firearm and possession of ammunition, a 2008 conviction for assault and battery with a dangerous weapon, . . . a 2005 conviction for possession of a firearm . . . a 2003 juvenile adjudication for possession of a firearm, 2002 juvenile adjudications for breaking and entering at night with intent to commit a felony and larceny, and [a] 2001 juvenile adjudication for unarmed robbery.

(Docket Entry # 182-4, ¶ 8).

Notably, the CI explained to Agent Jacobsen that Cousin was “actively requesting that people locate drug dealers with stash-houses” who possess “money and narcotics, and report back to COUSIN with the information.” (Docket Entry # 182-2, ¶ 12) (Docket Entry # 182-3, ¶ 10). The CI also informed Agent Jacobsen that Cousin “was recently casing potential targets for robberies.” (Docket Entry # 182-4, ¶ 9). In fact, the CI “explained that as recently as October 2019, ” Cousin “requested”

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the CI to attempt to contact by telephone “a third party to seek information related to a potential stash house.” (Docket Entry # 182-4, ¶ 9) (Docket Entry # 183-3, ¶ 10).^[15]

Accordingly, on October 25, 2019, a Group Supervisor in ATF's Boston II Field Office (“the Group Supervisor”) authorized the ATF investigation of Cousin.^[16] (Docket Entry # 182-2, p. 2). On November 26, 2019, Agent Jacobsen met with the CI, who agreed to place a recorded telephone call to Cousin concerning his interest in participating in a potential robbery. (Docket Entry # 182-3, ¶ 17) (Docket Entry # 182-4, ¶ 11). A FaceTime video

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chat ensued, which Agent Jacobsen recorded using an audio recording device. (Docket Entry # 182-3, ¶ 17) (Docket Entry # 182-4, ¶ 11). During the chat, the CI told Cousin that “he/she had ‘a quick scheme'” and “‘need[ed] somebody.'” (Docket Entry # 182-3, ¶ 18) (Docket Entry # 182-4, ¶ 12). The CI referred to the potential of a robbery and admitted to Cousin that “‘I know we're not on good terms.'” (Docket Entry # 182-3, ¶ 18) (Docket Entry # 182-4, ¶ 12). Cousin then asked the CI why the CI was calling him “‘knowing that we ain't on good terms?'”^[17] (Docket Entry # 182-3, ¶ 18) (Docket Entry # 182-4, ¶ 12). The CI answered, “‘Because I know what you do, '” whereupon Cousin replied, “‘I know.'” (Docket Entry # 182-3, ¶ 18) (Docket Entry # 182-4, ¶ 12). The two “then began to discuss their past.” (Docket Entry # 182-3, ¶ 18) (Docket Entry # 182-4, ¶ 12). Cousin then asked the CI for more information about the robbery. (Docket Entry # 182-3, ¶ 18) (Docket Entry # 182-4, ¶ 12). The CI responded “‘that her/his people were coming...