United States v. Pugh, 15-CR-116 (NGG)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtNICHOLAS G. GARAUFIS, United States District Judge.
Docket Number15-CR-116 (NGG)
Decision Date21 December 2015


15-CR-116 (NGG)


December 21, 2015


NICHOLAS G. GARAUFIS, United States District Judge.

Tairod Nathan Webster Pugh ("Pugh" or "Defendant") brings this pretrial omnibus motion (Not. of Mot. (Dkt. 28)), seeking: (1) dismissal of Count One of the Indictment (Indictment (Dkt. 11)), on the ground that Count One fails to state an essential element of the offense, (2) dismissal of Count Two of the Indictment, on the separate grounds of insufficiency of the evidence and duplicity, (3) suppression of the evidence obtained from three search warrants, on the grounds that the warrants were overbroad, lacked particularity, and were supported by stale probable cause, (4) a bill of particulars, (5) early disclosure of Brady and Giglio material, and (6) early disclosure of Rule 404(b) evidence. Pugh later filed a second motion seeking additional Brady material. (Suppl. Mot. for Release of Brady Materials (Dkt. 44).) For the reasons discussed below, Pugh's motions are DENIED in full.


A. Alleged Facts

1. Pugh's Personal Background

Pugh is a United States citizen who served in the U.S. Air Force from 1986 to 1990. (Mem. in Supp. of Def.'s Pre-Trial Mot. ("Def.'s Mem.") (Dkt. 29) at 2.) As an avionics instrument system specialist, he received training in the installation and maintenance of aircraft

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engine, navigation, and weapons systems. (Id.) After moving to San Antonio, Texas in 1998, Pugh converted to Islam. (Id.) In 2001, while working for American Airlines, Pugh allegedly expressed anti-American and pro-terrorist sentiments to a coworker. (Id.) The next year, Pugh allegedly expressed his desire to travel to the Middle East to fight Jihad. (Id.) From October 2009 through March 2010, Pugh worked in Iraq as an Army contractor for a company called DynCorp. (Id.) During 2013 and 2014, Pugh worked in the Middle East as an avionic specialist and airplane mechanic. (Id.) In December 2014, Pugh was fired from his job as a commercial airplane mechanic in Kuwait. (Id.)

2. Push's Arrest

On January 6, 2015, Pugh purchased a one-way ticket for January 10, 2015, from Cairo, Egypt, to Istanbul, Turkey. (Mem. in Opp'n to Def.'s Mot. ("Gov't's Opp'n") (Dkt. 41) at 3.) Upon his arrival at Instanbul's Atatürk Airport on January 10, Pugh was stopped for questioning by Turkish authorities. (Def.'s Mem. at 2.) He allegedly told the Turkish officials that he was a pilot in the U.S. Special Forces and that he was visiting Turkey for vacation. (Id.) He also withheld consent to a search of the laptop he had in his possession. (Id.) Pugh was denied entry into Turkey and was placed on a return flight to Cairo that same day. (Id.)

Upon returning to Egypt on the evening of January 10, Pugh was detained by Egyptian officials. (Id. at 3.) In response to questioning, Pugh told the officials that he had traveled to Turkey in search of work and disclaimed any desire to travel to Syria. (Id.) Egyptian officials found various electronic devices in Pugh's possession, including a laptop, two cell phones, an iPod, and five USB thumb drives (collectively, the "Electronic Devices"). (Id.) The laptop was determined to be water-damaged and inoperable (id.), the iPod appeared to have been wiped clean of data (id.), and "many of the USB thumb drives appeared damaged and were missing

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their outer casings" (id. (quoting Aff. of Ghailan Stepho in Supp. of Arrest Warrant ("Compl.") (Dkt. 1) ¶ 15)). Pugh provided the Egyptian officials with the password for one of his cell phones, which contained photographs of a machine gun,1 airplanes, an airplane toilet, and the area under an airplane seat. (Id.) Pugh was also in possession of two backpacks. (Gov't's Opp'n at 3.) Inside the backpacks, law enforcement officials viewed, but did not seize, broken bits of plastic consistent with outer casings of USB thumb drives, travel documents, notes, and other papers. (Id.) Egyptian authorities told Pugh that he was likely to be deported to the United States; Pugh responded that he would prefer to remain in Egyptian custody or be sent anywhere in the Middle East. (Def.'s Mem. at 3.) Nevertheless, Pugh was placed on a flight to the United States, which arrived at New York City's JFK Airport on January 15, 2015. (Id.) Pugh did not have access to the backpacks or their contents during the flight. (Id. at 4.)

Soon after his arrival at JFK Airport, Pugh was selected by U.S. Customs and Border Protection for secondary inspection and for an interview by U.S. Department of State officials concerning his deportation from Egypt. (Gov't's Opp'n at 7.) During the secondary inspection, Pugh explained that he had attempted to enter Turkey in search of work (id.), and that he had researched job opportunities and requirements prior to going to Turkey (id. at 8). Pugh explained that when he arrived at Atatürk Airport in Turkey, he was denied entry and told that he fit the "profile" of Islamic fighters based on his appearance and the fact that he lacked hotel reservations or any plan as to where he would go upon entering the country. (Id.)

Following his secondary inspection, but prior to his interview with the Department of State, an undercover government agent (the "UC") approached Pugh and engaged him in conversation for approximately one hour. (Id.) According to the UC, Pugh discussed the series

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of events leading to his removal from Turkey, and explained that he believed that he had been denied entry into Turkey because Turkish officials took issue with his appearance. (Id.) Later in the conversation, the UC asked Pugh if he had a Facebook account, which Pugh confirmed. (Id.) The UC then opened a Facebook page that he claimed was his own, and showed it to Pugh. (Id.) The Facebook page featured the ISIL flag as a banner, which the UC showed to Pugh. (Id.) This sight caused Pugh to "appear[] pleased." (Id.) Subsequently, Pugh allegedly stated that he had traveled to Turkey in an attempt to join ISIL. (Id.) The UC then told Pugh that he had similar desires, allegedly leading Pugh to provide the UC with advice on how to enter Syria through Turkey—such as by disguising one's appearance to resemble a hiker or tourist. (Id. at 9.) In addition to these statements, Pugh allegedly told the UC that: (1) he told Egyptian authorities that he would rather be deported anywhere but the United States; (2) he had expected to be arrested upon his arrival on American soil; (3) he had recently married an Egyptian woman; (4) he had worked as an airplane mechanic in the Middle East, (5) he gained experience working with airplanes during his service in the U.S. Air Force; and (6) he avoids talking on phones because of security concerns. (Def.'s Mem. at 7.)

Pugh subsequently left JFK Airport.2 (Gov't's Opp'n at 9.) At that time, the two backpacks were in his possession. (Id.) Law enforcement officers kept Pugh under surveillance until they were able to obtain an arrest warrant the following day, January 16, 2015. (Id.) Pursuant to that arrest warrant, issued by United States Magistrate Judge Steven I. Locke, Pugh was arrested in New Jersey on the evening of January 16. (Id.; Def.'s Mem. at 2)

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3. The Search Warrants

a. The Electronic Devices Warrant

On January 11, 2015, the FBI obtained the Electronic Devices—the laptop, two cell phones, the iPod, and five USB thumb drives—that were seized by Egyptian authorities following Pugh's return flight from Atatürk Airport the previous night. (Def.'s Mem. at 4.) While Pugh was still in Egyptian custody, the FBI sought and obtained a search warrant, dated January 14, 2015, which authorized a search of these devices. (Id.; see Search Warrant Issued January 14, 2015 ("Electronic Devices Warrant") (Decl. of Eric M. Creizman in Supp. of Def.'s Pre-Trial Mot. ("Creizman Decl.") (Dkt. 30), Ex. C (Dkt. 30-3)).) Specifically, the warrant authorized a search for evidence of the crime of conspiracy to provide material support to a foreign terrorist organization ("FTO"), in violation of 18 U.S.C. § 2339A. (Electronic Devices Warrant at 1.) The warrant application also sought evidence relating to a violation of 18 U.S.C. § 1519, which prohibits obstructing or attempting to obstruct an official proceeding, but that section of the application was crossed out by Magistrate Judge James Orenstein without further explanation. (Id.)

The Electronic Devices Warrant incorporated two attachments: Attachment A, which described the property to be searched, and Attachment B, which described the particular things to be seized. Attachment B included a non-exhaustive list of the types of evidence whose seizure was authorized by the warrant, restricting the target to information "that constitutes fruits, evidence and instrumentalities of the provision of or conspiracy to provide material support for terrorist activity" in violation of 18 U.S.C. § 2339A, and the "destruction of evidence relating to such crimes," in violation of 18 U.S.C. § 1519.3 (Electronic Devices Warrant, Attach. B.)

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Attachment B permitted law enforcement officers to search the Electronic Devices for, among other things, online contacts and communications, email addresses, travel records, Islamic extremist videos and images, weapons training, information relating to the Electronic Devices, and evidence indicating the destruction or attempted destruction of evidence that may be contained on the Electronic Devices. (Id.)

The execution of the Electronic Devices Warrant revealed that the internal hard drives had been removed from four of the five USB thumb drives seized from Pugh, rendering their contents unreadable.4 (Gov't's Opp'n at 6.) Additionally, the search uncovered an email sent from the email address tairod.pugh@outlook.com, dated December 11, 2014, in which the writer notified the recipient that he had been fired from his job. (Id.) The search of...

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