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UNITED STATES of America v. Humberto MORALES, Jose Alvarado, Oscar Avelar Angutano, Kim Lamont Birdsong, Terrance Marquette Bobo, Avigael Cruz, Billy Cruz, Ricardo Davalos Martinez, Austin Dodd, Mario Garcia Flores, David Ku, Jacob Lee, Justin Blake Lee, Armando Lopez, Tiffany Messick, Kevin Oliva-Hernandez, Stacy Owens, Korrine Parker, Magdiel Pina Ramirez, Luis Ramirez Escudero, Jairo Rostran, Jesse Sanchez, Phillip Christopher Smith, Jasmine Taylor, Kevin Tidwell, Melinda Tidwell, Erika Vasquez
MEMORANDUM OPINION AND OMNIBUS ORDER
On March 24, 2021, a federal grand jury returned an 18-count Indictment against the above named Defendants. Count One alleges that beginning in January 2018, and until the date of the Indictment, all 27 Defendants were members of a conspiracy to distribute assorted controlled substances, including heroin, methamphetamine, fentanyl and marijuana in violation of 21 U.S.C. §§ 841(a)(1), 846. Count Two alleges that most of the Defendants during that same period conspired to commit money laundering in an effort to hide the source of income derived from illegal drug trafficking in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(a)(1)(B)(i). Count Three is another count against all Defendants alleging that, during the same January 2018 to March 2021 period, they used encrypted communication services, telephones, mobile devices, the United States Mail, and commercial parcel delivery services to facilitate their drug trafficking operations. Count 4 is another charge leveled against the majority of the Defendants wherein it is alleged that they possessed a firearm during and in relation to the overall drug trafficking conspiracy in violation of 18 U.S.C. §§ 924(c)(1)(A), 2.
The remaining 14 counts are date- and Defendant-specific and allege a myriad of crimes. Those crimes include, but are not limited to: transmitting threats of injury and/or death to a co-defendant and members of his family in violation of 18 U.S.C. § 875(c) (Count Five); attempted possession of illegal drugs on a specific date in violation of 21 U.S.C. § 841(a)(1) (Counts Seven, Nine, Fourteen); possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count Eight, Ten, Fifteen); possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924; kidnapping and maiming an individual to punish her for losing drug proceeds in violation in violation of 18 U.S.C. §§ 1201(a)(1), (c) (Counts Twelve, Thirteen); possessing a firearm while an unlawful user of a controlled substance or addict in violation of 18 U.S.C. § 922(g)(3) (Count Sixteen); and unlawfully possessing a machine gun in violation of 18 U.S.C. §§ 922(o), 924 (Count Seventeen). The Indictment also includes a forfeiture Count in which all but a handful of Defendants are named.
Since the return of the Indictment, and with a three month trial scheduled to begin on September 6, 2023, a number of Defendants have indicated that they have reached (or are in the process of reaching) a plea agreement with the Government or intend to enter a plea without an agreement. Many of those that remain have filed pretrial motions in accordance with the August 22, 2022 Amended Scheduling Order. (Doc. No. 894 at 3). It is those motions that are the subject of this Memorandum Opinion.1
By this Court's count, there are 16 substantive motions pending brought by 9 Defendants. Those motions can be considered collectively as falling into one of six categories: (1) to sever; (2) for a bill of particulars; (3) for early disclosure; (4) to dismiss; (5) to suppress; and (6) for a hearing.
I. Motions to Sever
Motions to Sever have been filed by Kevin Tidwell (Doc. No. 1129), Austin Dodd (Doc. No. 1131), Jose Alvarado (Doc. No. 1144), Melinda Tidwell (Doc. No. 1147), and Avigael Cruz (Doc. No. 1152). All of those Defendants are named in the overall conspiracies alleged in Counts One and Two, and most are named in Counts Three and Four. None, however, are alleged to have participated in the crimes alleged in the remaining Counts, including threatening to injure or murder a co-defendant and his family (Count Five), or kidnapping a victim who allegedly lost drug money and whose hand was chopped-off as punishment (Counts Twelve, Thirteen). Defendants insists that those crimes (and perhaps others) set forth in the substantive counts (Counts Five through Eighteen) are so outside the pale of the crimes that they are alleged to have committed that joinder of the counts was improper requiring severance. At a minimum, they insist the Court should exercise its discretion by severing the violent crimes from the specific crimes with which they have been charged.
Rule 8(a) of the Federal Rules of Criminal Procedure governs whether multiple offenses may be joined in a single indictment by providing:
The indictment or information may charge a defendant in separate counts with 2 or more offenses if the offenses charged—whether felonies or misdemeanors or both—are of the same or similar character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan.
Fed. R. Crim. P. 8(a). “[T]he spirit of Rule 8(a) ․ is to ‘promote the goals of trial convenience and judicial efficiency,’ ” United States v. Tran, 433 F.3d 472, 478 (6th Cir. 2006) (citation omitted), and the Sixth Circuit “construes Rule 8(a) in favor of joinder and evaluates whether joinder was appropriate based upon the four corners of the indictment.” United States v. James, 496 F. App'x 541, 546 (6th Cir. 2012).
Rule 8(b), in turn, governs the joinder of defendants:
The indictment or information may charge 2 or more defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses. The defendants may be charged in one or more counts together or separately. All defendants need not be charged in each count.
Fed. R. Crim. P. 8(b). Much like Rule 8(a), the “general rule” is that persons jointly indicted should be tried together because “ ‘there is almost always common evidence against the joined defendants that allows for the economy of a single trial.’ ” United States v. Lopez, 309 F.3d 966, 971 (6th Cir. 2002) (quoting United States v. Phibbs, 999 F.2d 1053, 1067 (6th Cir. 1993)). Also, and as with Rule 8(a), the Court looks “to the allegations in the indictment to determine whether joinder was proper.” United States v. Lewis, 363 F. App'x 382, 390 (6th Cir. 2010) (citing Schaffer v. United States, 362 U.S. 511, 513-14 (1960)). Misjoinder is a question of law, whether it be in relation to offenses under Rule 8(a), United States v. Deitz, 577 F.3d 672, 691 (6th Cir. 2009), or defendants under Rule 8(b), United States v. Frost, 125 F.3d 346, 389 (6th Cir. 1997).
“If the requirements of Rule 8 are not met, ‘the district court has no discretion on the question of severance.’ ” United States v. Cody, 498 F.3d 582, 586 (6th Cir. 2007) (citation omitted). “ ‘Severance in such a case is mandatory.’ ” Lewis, 363 F. App'x at 391 (quoting United States v. Hatcher, 680 F.2d 438, 441 (6th Cir. 1982)).
Based on the Indictment, the Court finds no misjoinder in this case, particular because both Rule 8(a) and (b) are to be broadly construed in favor of initial joinder and “because of the protection Rule 14 affords against unnecessarily prejudicial joinder.” United States v. Moreno, 933 F.2d 362, 370 (6th Cir. 1991) (citation omitted) (stating that “Rule 8(b) ‘can and should be broadly construed in favor of initial joinder’ ”). This is because there are sufficient connections between the Defendants and the crimes alleged in the Indictment to satisfy Rule 8.
Count One alleges an overarching conspiracy participated in by all Defendants to distribute a large amount of assorted controlled narcotics in the Middle District of Tennessee. Each of the remaining counts builds on that underlying premise, and, critically, each crime allegedly occurred within the time-frame of the conspiracy. This includes money laundering and use of firearms as a method to ensure the conspiracy's success. Likewise, even the violent crimes are linked because members of the conspiracy are alleged to have committed those crimes as a part of their role in the conspiracy and, presumably, to advance the goals of the conspiracy. Put somewhat differently, there is a bright common thread and overarching criminal conspiracy connecting the crimes alleged in the Indictment.
As with other cases, and “[a]s a general rule, individuals indicted together in a conspiracy charge should be tried together.” United States v. Hereford, 162 F. App'x 439, 444 (6th Cir. 2006) (citing United States v. Dempsey, 733 F.2d 392, 398 (6th Cir. 1984)). “In order to escape the general rule, the defendant must carry the heavy burden of showing specific and compelling prejudice resulting from a joint trial which can be rectified only by separate trials.” Id. (citing United States v. Davis, 809 F.2d 1194, 1207 (6th Cir. 1989)). This leads to a consideration of possible relief from potentially prejudicial misjoinder under Rule 14.
In pertinent part, Rule 14 provides:
If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires.
Fed. R. Crim. P. 14(a). “The resolution of a Rule 14 motion is left to the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion.” Tran, 433 F.3d at 478 (citing United States v. McCoy, 848 F.2d 743, 744 (6th Cir. 1988)). One seeking to sever must make a “a strong showing of prejudice” and establish that “joinder would compromise a specific trial right or prevent the jury from making a reliable judgment about guilt or innocence.” Id. (citing Zafiro v. United States, 506 U.S. 534, 539 (1993)). “[A] defendant is not entitled to a severance simply because the evidence against a codefendant is far more damaging than the evidence against him.” United States v. Driver, 535 F.3d 424, 427 (6th Cir. 2008)
Here, none of the Defendants have made a strong showing of prejudice or that a specific trial right will be compromised in a joint trial. They argue that there will be prejudicial spillover were a trial to be held jointly because of the “violent” and “gruesome” nature of some of the crimes alleged against some of the other Defendants. As noted, this includes not only threatening to hurt or kill a co-defendant and members of his family, but also kidnaping and cutting off the hand of one who had the temerity to lose drug proceeds. Worse yet, the amputation was allegedly videotaped and distributed to others for their viewing.
No doubt, a reasonable jury might find such evidence to be shocking, but for severance purposes, “[t]he movant must demonstrate an inability of the jury to separate and treat distinctively evidence relevant to each particular defendant.” United States v. Swift, 809 F.2d 320, 322 (6th Cir. 1987). As the Sixth Circuit has recently observed:
The Supreme Court has set a high standard for Rule 14 severance: “only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). “[L]ess drastic measures, such as limiting instructions,” are preferred and “often will suffice to cure any risk of prejudice.” I[d]. And severance is inappropriate “if a jury can properly compartmentalize the evidence as it relates to the appropriate defendants.” Driver, 535 F.3d at 427[.]
United States v. Lucas, No. 19-6390, 2021 WL 4099241, at *7 (6th Cir. Sept. 9, 2021). “Even if the movant establishes ‘some potential jury confusion, this must be balanced against society's need for speedy and efficient trials.’ ” Id. (citations omitted).
Here, the Court has no doubt that the jury selected to try the case will be able to treat each count separately and compartmentalize the evidence as to each Defendant. Not only will the jury be provided a copy of the Indictment when deliberating, the Court will liberally entertain limiting instructions upon request of the parties as the trial progresses. “A jury is presumed to follow its instructions,” Weeks v. Angelone, 528 U.S. 225, 234 (2000), and, in addition to limiting instructions where appropriate, the jury will be instructed to consider each defendant and each count separately, and not to infer anything from that others may be charged with additional crimes. Moreover, the verdict form will identify what counts and with what crimes each Defendant is charged. Simply put, it will be clear beyond peradventure of doubt that Humberto Morales and Kevin Oliva-Hernandez are alleged to have kidnapped, maimed, and videotaped the person who lost drug money; that Humberto Morales is alleged to have used interstate communications to threaten to injure or murder Magdiel Ramirez and his family, just as the jury will know which Defendant(s) are alleged to have committed each of the other substantive counts.
In his brief, Kevin Tidwell quotes the Second Circuit decision in United States v. Casemento, 887 F.2d 1141, 1152 (2d Cir. 1989), for the proposition that “the judge should oblige the prosecutor to make an especially compelling justification for a joint trial of more than 10 defendants.” In doing so, however, the Second Circuit made the additional observation that this guideline (to the extent it can be considered as such) was “for any trial in which the prosecution's case is likely to require more than four months to present.” Id. The court observed:
Even in the event that the aggregate time for separate trials would not be less than the time for a joint trial of all defendants, there are significant advantages to be achieved. The lives of each group of jurors would be imposed upon for a shorter time, there would be a smaller group of defense counsel in each trial with a consequent reduction in trial disputes, the trial judge would have a more manageable task, and the jurors’ ability to focus on individual defendants would be enhanced.
While the Court agrees with those sentiments, it does not expect this case to last more than four months. Nor does the Court know what the magical number of defendants would be before severance becomes necessary. That said, recent experience has led this Court to conclude that, for a lengthy trial of three months or more, trying seven to eight defendants at one time is about the maximum. This is based not only on practical matters, including the size of the courtroom and the logistics of ushering in and out defendants who are in custody, but also the reality that smaller groups necessarily allow for greater focus by the jury, the litigants, and the Court.
All of this is to say that the Court will revisit the severance issue as the case gets closer to trial if a large number of Defendants remain. For now, the Motions to Sever filed by Kevin Tidwell (Doc. No. 1129); Austin Dodd (Doc. No. 1131); Jose Alvarado (Doc. No. 1144); Melinda Tidwell (Doc. No. 1147); and Avigael Cruz (Doc. No. 1152) are DENIED WITHOUT PREJUDICE because those Defendants have not shown improper joinder or made a substantial showing of prejudice.
II. Motions for Bill of Particulars
Motions for a bill of particulars have been filed by Terrance Bobo (Doc. No. 1121), Avigael Cruz (Doc. No. 1151) and Kevin Tidwell (Doc. No. 1130). Bobo and Cruz seek a Bill of Particulars with respect to Count Four, while Tidwell seeks the same with respect to each of the counts in which he is charged (Counts One through Four).
A district court, in its discretion, United States v. Robinson, 390 F.3d 853, 867 (6th Cir. 2004), “may direct the government to file a bill of particulars.” Fed. R. Crim. P. 7(f). “The function of a bill of particulars is to ‘to minimize surprise and assist [the] defendant in obtaining the information needed to prepare a defense and to preclude a second prosecution for the same crimes.’ ” United States v. Crayton, 357 F.3d 560, 568 (6th Cir. 2004) (quoting United States v. Salisbury, 983 F.2d 1369, 1375 (6th Cir. 1993)). “A bill of particulars ‘is not meant as a tool for the defense to obtain detailed disclosure of all evidence held by the government before trial.’ ” Id. Instead, “the test in ruling on a motion for a bill of particulars is whether providing such details is necessary to the preparation of the defense and avoidance of prejudicial surprise.” United States v. Musick, 291 F. App'x 706, 724 (6th Cir. 2008).
In determining whether further details are needed in the form of a bill of particulars, the Court can consider whether sufficient discovery has been provided from which a defendant can prepare to defend against the charges. United States v. Martin, 516 F. App'x 433, 455 (6th Cir. 2013); see also, United States v. Urb, 404 F.3d 754, 772 (3d Cir. 2005) (observing that “access to discovery weakens the case for a bill of particulars”); United States v. Long, 706 F.2d 1044, 1054 (9th Cir. 1983) (“In determining if a bill of particulars should be ordered in a specific case, a court should consider whether the defendant has been advised adequately of the charges through the indictment and all other disclosures made by the government.”). To say that there was extensive discovery provided by the Government to Defendants in this case would be a gross understatement.
Early on in the case, the Court appointed a Coordinating Discovery Attorney (“CDA”) whose job it has been to marshal the voluminous discovery from the Government and provide it in a usable format to Defendants. The CDA also regularly provides the Court with status reports regarding discovery.2 According to the most recent report (Doc. No. 1220) the global discovery provided to all defense counsel to date has amounted to 10.58 terabytes (“TB”) of data,3 consisting of 7.44 TB of multimedia, 1.66 TB of device extractions; 1.43 TB of forensic images; and 43.2 gigabytes of documents, a small portion of which were “native emails.” (Doc. No. 1220). The CDA has developed tools to aid defense counsel in their review of these materials and has offered individual and group training for counsel as needed. More telling is that multiple defense counsel have complimented the CDA's work and the efficiency and effectiveness of that work to facilitate Defendants and Defendants’ counsel's review and analysis of the voluminous discovery. Even though the Court has held regular status conferences and received monthly reports from defense counsel, it is unaware of any real problems or concerns about discovery or counsel's access to it. In addition to discovery provided by the Government, the record contains Criminal Complaints (Doc. Nos. 1, 3) that provide a robust synopsis of some of the evidence that the Government had amassed by the time of the return of the Indictment.
Against this backdrop and in the absence of any real substantive arguments by Tidwell, the Court does not perceive any need for a Bill of Particulars with respect to Counts One through Three, as all are relatively pedestrian and relate to an all-encompassing drug conspiracy and the use of money laundering and communications devices to facilitate that conspiracy. Presumably, much of the evidence supporting these charges will be found in documentation of hand-to-hand transactions, texts, documents, pole cam videos, and suveillance videos, all of which has been made accessible to him.
Count Four, on the other hand, gives the Court some pause. It reads:
Beginning on a date unknown to the Grand Jury, but since at least January 2018, and continuing up through and including the present, in the Middle District of Tennessee and elsewhere, [22 named Defendants including Bobo, Cruz and Tidwell] knowingly possessed a firearm in furtherance of a drug trafficking crime for which they may be prosecuted in a court of the United States, that is conspiracy to distribute and possess with intent to distribute controlled substances, in violation of Title 21, United States Code, Sections 841 and 846, as charged in Count One of this Indictment. In violation of Title 18, United States Code, Sections 924(c)(1)(A) and 2.
(Doc. No. 77, Indictment Count Four).
“It is well established that 18 U.S.C. § 924(c)(1)(A) creates two distinct criminal offenses[:] (1) using or carrying a firearm during and in relation to any crime of violence or drug trafficking crime; and (2) possessing a firearm in furtherance of any crime of violence or drug trafficking crime.” United States v. Cobbs, 233 F. App'x 524, 532 (6th Cir. 2007) (citing United States v. Combs, 369 F.3d 925, 933 (6th Cir. 2004)). Because Count Four falls within the second category, it is incumbent upon the Government to prove beyond a reasonable doubt that a named defendant “ ‘possesse[d] a firearm,’ ‘in furtherance of’ a ‘drug trafficking crime.’ ” United States v. Bailey, 553 F.3d 940, 949 (6th Cir. 2009) (quoting 18 U.S.C. § 924(c)(1)(A)).
Notably, Count Four does not identify what type of gun was possessed by which Defendant on a particular day. It may be, as the Government argues in its brief, that it need not identify a precise gun to support a Section 924(c) conviction. Even so, it must established that a given Defendant possessed a firearm. See Manners v. United States, 947 F.3d 377, 382 (6th Cir. 2020) (noting two “basic elements” under Section 924(c), one of which is “the firearm element”).
Some Defendants named in the substantive counts may readily ascertain when they possessed a firearm in relation to a drug trafficking crime. For example, Justin Blake probably understands the basis for his inclusion in Count Four because in Count Eleven he is charged with possessing with intent to distribute 100 grams or more of heroin and 400 grams or more of fentanyl on July 26, 2019, the very day he is also alleged to have possessed a Star 9mm pistol knowing he had previously been convicted of a felony. The same is probably true for Kevin Oliva-Henandez because Count Sixteen alleges that, while an unlawful drug user or addict, he possessed a Magnum Research Eagle .44 caliber pistol on August 10, 2020, the same date on which he is alleged to have possessed 400 grams of fentanyl.
For others, the answer may not be so clear. Suppose, for example, the Government believes that defendant John Doe possessed a firearm on a certain day because video surveillance showed what the Government thinks was a handgun sticking out of Mr. Doe's waistband. Clearly, this is something that could easily be overlooked during a review of discovery. Just as clearly, neither the parties or the Court should have to waste time at trial on an issue that can easily be ironed-out before trial.
In response to each Motion for a Bill or Particular, the Government writes:
Notwithstanding the government's asserted position on this issue, counsel for the government is open to further discussions with defense counsel to address counsel's concern in advance of the hearing previously set by the Court.
(Doc. No. 1248 at 5).
The Court will require the Government to make good on its offer as to Count Four. Counsel for the Government and counsel for Tidwell, Bobo, and Cruz shall meet in person and confer in an effort to resolve the need for a bill of particulars in relation to that Count. On or before April 12, 2023, the parties shall file a notice with the Court indicating whether the issue has been resolved. If not, the matter is set for April 20, 2023, at 9:00 a.m. for oral argument or hearing.
Accordingly, Tidwell's Motion for a Bill of Particulars (Doc. No. 1130) is DENIED with respect to Counts One, Two and Three. The Court RESERVES RULING on Tidwell's Motion as it pertains to Count Four, as well as the Motion for a Bill of Particular filed by Bobo (Doc. No. 1121) and Cruz (Doc. No. 1151).
III. Motions for Early Disclosure
Under an Amended Scheduling Order – agreed to by the parties and approved by the Court – “the Government shall provide its Witness List, with a short summary of the expected testimony, by August 9, 2023.” (Doc. No. 894 at 3). The Government also agreed to “file its Exhibit List” and “provide its Jencks materials to the Defendants proceeding to trial” by that same date. (Id.). Notwithstanding that all of this will occur a full month before trial, Avigael Cruz has filed a Motion for Disclosure of Witness Agreements (Doc. No. 1140), a Motion for Disclosure of Specific Items of Impeaching Information (Doc. No. 1142), and a Motion for Early Disclosure of Rule 404(b) Evidence (Doc. No. 1143). Except for the last motion wherein he request that the disclosure be made 90 days before trial, Cruz does not identify when he should receive the disclosures.
In accordance with the agreement between the parties, Jencks material is due to Defendants on or before August 9, 2023. The Government agreed to this deadline even though, under the Jencks Act, “no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.” 18 U.S.C. § 3500(a). The Government submits that its Jencks Act disclosure “will necessarily include any Giglio/Brady information in the government's possession, including plea agreements, criminal history information, any witness promises, and other impeachment information.” (Doc. No. 1243 at 1). This is in keeping with the Sixth Circuit's repeated admonition that “[w]hen Brady material sought by a defendant is covered by the Jencks Act ․ the terms of that Act govern the timing of the government's disclosure.” United States v. Davis, 306 F.3d 398, 421 (6th Cir. 2002) (citation omitted). “Put another way: the Jencks Act trumps Brady where impeachment evidence is Jencks Act material.” United States v. Brazil, 395 F. App'x 205, 215 (6th Cir. 2010).
In any event, the inclusion of Giglio/Brady material into the August 9, 2023 deadline is more than generous. Giglio material (involving agreements with, or promises by, the Government) and Brady material (involving material that is both favorable to the accused and material to guilt or punishment) need only be disclosed in time for its “effective use at trial.” United States v. Presser, 844 F.2d 1275, 1283 (6th Cir. 1988); see also, United States v. Douglas, 525 F.3d 225, 245 (2d Cir. 2008) (same); United States v. Starusko, 729 F.2d 256, 262 (3d Cir. 1984) (same). Certainly disclosure thirty days before trial meets this standard and Cruz does not cogently argue otherwise.
In response to Cruz's motion for early disclosure of 404(b) evidence, the Government correctly notes that there is a difference between true 404(b) evidence and “intrinsic” evidence. “Extrinsic acts include other crimes or wrongs which ‘occurred at different times and under different circumstances from the offense charged,’ while intrinsic acts ‘are those that are part of a single criminal episode.’ ” United States v. Knox, 17 F. App'x 353, 357 (6th Cir. 2001) (quoting United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995)). Acknowledging that difference, the Sixth Circuit has held Rule 404(b) is “not applicable where the challenged evidence is ‘inextricably intertwined’ with evidence of the crime charged,” United States v. Everett, 270 F.3d 986, 992 (6th Cir. 2001), “or when the acts are ‘intrinsic,’ or ‘part of a continuing pattern of illegal activity.’ ” United States v. Rozin, 664 F.3d 1052, 1063 (6th Cir. 2012) (quoting Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995)). Of course, “intrinsic evidence, like all evidence, must satisfy the balancing requirement of Rule 403: its probative value must not be substantially outweighed by a risk of unfair prejudice to the defendant.” Id.
Intrinsic evidence aside, Rule 404(b) of the Federal Rules of Evidence provides in pertinent part:
In a criminal case, the prosecutor must:
(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;
(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and
(C) do so in writing before trial – or in any form during trial if the court, for good cause, excuses lack of pretrial notice.
Fed. R. Evid. 404(b) (3). Here, the Government has agreed to provide Rule 404(b) evidence by August 9, 2023.
“What constitutes ‘reasonable notice’ depends on ‘the circumstances and complexity of the prosecution.’ ” United States v. Fields, No. CR 21-458, 2023 WL 535221, at *4 (W.D. Pa. Jan. 27, 2023) (citation omitted). “In general, courts have found that, “reasonable notice” under Rule 404(b) is in the range of seven to ten days or one to two weeks prior to trial.” Id. see e.g., United States v. Myles, No. 22-CR-205 (MJD/TNL), 2023 WL 2368014, at *2 (D. Minn. Mar. 6, 2023) (“[T]he Court finds that disclosing 404(b) evidence 14 days prior to trial provides reasonable notice before trial.”); United States v. Gillier, No. 11 CR. 409 (PAE), 2022 WL 179204, at *4 (S.D.N.Y. Jan. 19, 2022) (“Courts in this Circuit have routinely found that at least ten business days provides reasonable notice to a defendant under Rule 404(b).”). Even in complex cases, 30 to 45 days advance notice has routinely been found to be reasonable. See United States v. Thompson, No. CR 19-20-LPS, 2020 WL 6581687, at *6 (D. Del. Nov. 10, 2020) (collecting cases for the proposition that courts have found notice of intent to use Rule 404(b) evidence seven to ten days prior to trial to be sufficient, but also that “production of Rule 404(b) evidence up to thirty days prior to trial is also typical”); United States v. Darden, 346 F. Supp. 3d 1096, 1117 (M.D. Tenn. 2018) (collecting cases providing a deadline of 30 to 45 days for Rule 404(b) notice, and finding “Government's request[ed deadline] is entirely reasonable because it is a month and a half before trial”); United States v. Vaid, No. 16 Cr. 763, 2017 WL 3891695, at *13 (S.D.N.Y. Sept. 5, 2017) (granting thirty days notice due to the scope of the alleged conspiracy and number of defendants). Apart perhaps from plucking the number out of the air, Cruz does not provide any reason why ninety days is necessary, particularly because the Government's response seems to suggest that there will not be a great deal of 404(b) evidence in this case.
All three of Cruz's discovery motions (Doc. Nos. 1140, 1142, 1143) are accordingly DENIED.
IV. Motion to Dismiss
Terrance Bobo has filed a Motion to Dismiss on three grounds. He claims that the Indictment was returned in an improper venue; that it alleges a “rimless wheel conspiracy,” which he never joined; and that the spillover effect of being tried with the others warrants dismissal. For the reasons already explained in relation to the Motions to Sever by his co-defendants, this Court does not believe that any spillover effect (or “guilt by association” as Bobo puts it) would impair his right to a fair trial. Nor is dismissal warranted on the other grounds he presents.
In his statement of facts supporting the Motion to Dismiss, Bobo writes:
The Government's theory of the offenses alleged against Mr. Bobo in the indictment accuse him of participating with the other co-defendants in an ongoing conspiracy in the Middle District of Tennessee to distribute narcotics as well as other specific offenses related to the ongoing enterprise run by Mr. Morales. Mr. Bobo is a resident of Memphis, Tennessee, located in the Western District of Tennessee and, at no time during the course of this charged conspiracy, did he leave the Western District. None of the alleged criminal acts he participated in or perpetrated took place in the Middle District of Tennessee and the mere fact that Mr. Morales was located in the Middle District of Tennessee when Mr. Bobo had some limited communications with him does not establish that he was committing any offenses in the Middle District of Tennessee. Further, the facts as provided in the Government's discovery fail to even demonstrate that Mr. Bobo was participating in the same alleged conspiracy and, for this reason, he is entitled to relief.
(Doc. No. 1122 at 1).
For its part, the Government has an entirely different take on the facts and Bobo's involvement in the alleged conspiracy. It writes:
[A] multi-agency investigation revealed the existence of a large-scale drug trafficking operation (DTO) being operated since at least 2018 by Humberto Morales from within the state prison system, principally within the Middle District of Tennessee. Based on review of the contents of the cellular telephones, interviews, seizures, and other evidence, the conspiracy operated in various counties in this district, including Davidson County, as well as in other states, such as California, and the country of Mexico. Review of the contents of these telephones verified that Morales and his co-conspirators, including this defendant, routinely used encrypted communication services to communicate regarding drug trafficking, drug proceeds, firearms, and violence.
During this investigation, agents identified numerous co-conspirators, to include the defendant, Terrance Bobo, through reviewing cellular telephones and other means of investigation. The evidence against Bobo, a Grape Street Crip gang member who lived in the Memphis area, showed that he obtained drugs through the lead defendant, Morales, for distribution. He repeatedly obtained various types of drugs from other co-conspirators, as arranged by Morales, and transferred drug proceeds to others. He also participated in the conspiracy by helping Morales look for a witness (EF) from the previous home invasion incident in Williamson County, Tennessee, which resulted in the current imprisonment of Morales and Mario Flores, one of Morales’ co-defendants in that prior state case and a current codefendant, according to messages found in the seized Morales’ phones and other evidence. Text messages sent by Morales to other co conspirators showed that Morales was trying to be released from state imprisonment and intended to continue his drug trafficking and money laundering conspiracies on an even larger scale if he was released from that imprisonment. Morales, who then was incarcerated within Middle Tennessee, communicated directly with Bobo from prison, had large quantities of drugs delivered from Nashville by co-conspirators to Bobo in Memphis for distribution. At Morales’ direction, Bobo, like others in this conspiracy, also coordinated wire transfers of drug money to specific contacts in Mexico in furtherance of the drug conspiracy.
(Doc. No. 1255 at 2-3).
Of course, the Court has no way of knowing what the actual facts are or what the Government will be able to prove at trial. And, it is precisely because the Court does not know and the parties have a very different view of the facts that the Motion to Dismiss must be denied.
A. Improper Venue
Article III of the United States Constitution requires that “[t]he Trial of all Crimes ․ shall be held in the State where the said Crimes shall have been committed.” U.S. Const. art. III § 2 cl. This is taken a step further in the Sixth Amendment that provides in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed[.]” Id. amend. VI. Federal statutes and rule, in turn, further codify the constitutional right with Rule 18 providing that, “[u]nless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed.” Fed. R. Crim. P. 18.
Because (1) “[t]here can be no question about the right of a person charged with a crime to be tried in the forum (venue) in which the crime is alleged to have been committed,” United States v. Branan, 457 F.2d 1062, 1065 (6th Cir. 1972); and (2) venue can be waived, Shetterly v. United States, 205 F.2d 834, 835 (6th Cir. 1953), Rule 12 requires that the defense of improper venue “must be made before trial ․ if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits.” Fed. R. Crim. P. 12(b)(3)(A)(i). Bobo has filed such a motion in this case and argues that he did not have the intent to join the specific conspiracies alleged, let alone one in the Middle District of Tennessee.
“Questions of venue in criminal cases ․ are not merely matters of formal legal procedure [because they] raise deep issues of public policy in the light of which legislation must be construed.” United States v. Williams, 274 F.3d 1079, 1083 (6th Cir. 2001). Nevertheless, Bobo's argument is a nonstarter.
Take, for instance, the overriding drug conspiracy alleged in Count One. For that crime, venue is proper “in any district where the conspiracy was formed or in any district where an overt act in furtherance of the conspiracy was performed.” Id. (citing United States v. Scaife, 749 F.2d 338, 346 (6th Cir. 1984)). Because a drug conspiracy is a continuous crime and is “not completed until the drugs reach their final destination ․ venue is proper in any district along the way.” Id. (citing United States v. Turner, 936 F.2d 221, 226 (6th Cir. 1991)). As such, venue in a conspiracy prosecution “is proper in any district where the agreement was formed or in any district where an overt act in furtherance of the conspiracy was committed.” United States v. Parlier, 570 F. App'x 509, 513 (6th Cir. 2014).
Pretty much the same holds true for the money laundering conspiracy alleged in Count Two. Under the plain text of the money laundering statute, venue is proper “in any other district where an act in furtherance of the ․ conspiracy took place.” 18 U.S.C. § 1956(i)(2). This means “(1) in the district where venue would lie if the completed money laundering offense had been accomplished, or (2) any district where an ‘overt act in furtherance of the conspiracy’ was committed.” Whitfield v. United States, 543 U.S. 209, 218 (2005) (emphasis in original). Moreover, and much like a drug conspiracy, venue is proper in a district where a co-defendant has carried out overt acts, even if the defendant never entered that district. United States v. Rodriguez–Moreno, 526 U.S. 275, 281 (1999).
Against this backdrop, Bobo's venue argument fails because it is not one that “can be determined without a trial on the merits” as required by Rule 12. According to the Government, the proof will show that Humberto Morales headed a drug and money trafficking ring out of the Tennessee state prison system at a time when Morales was housed primarily in the Middle District of Tennessee. From there, Morales arranged for drugs to be delivered to this district from Mexico and California; had drugs delivered by couriers to other cities, using this district as an operational hub; and he coordinated wire and other money transfers from this district to California and Mexico. With regard to Bobo specifically, the Government asserts that Morales communicated with him from prison and arranged for drugs to be delivered by co-conspirators to Bobo in Memphis for distribution, and Bobo sent wire transfers of the drug proceeds back to Morales or one of his confederates, thereby helping to continue the flow of drugs into this district from California and Mexico. If the Government proves these allegations, this is clearly sufficient to support venue in this district particularly because – for either a drug or money laundering conspiracy – a defendant need not be present in this district or even know about the overt act being committed in this district, so long as it was in fact committed here. See United States v. Iossifov, 45 F.4th 899, 911 (6th Cir. 2022) (citation omitted) (observing in money laundering case “a co-conspirator's acts need not be foreseeable to a defendant for venue to properly lie in the district where such acts took place, nor is it necessary for a co-conspirator to ‘have entered the district’ where venue lies”); United States v. Parlier, 570 F. App'x 509, 513 (6th Cir. 2014) (citation omitted) (stating that in a drug conspiracy case “venue is proper in any district where a co-conspirator committed an overt act in furtherance of the conspiracy even if the defendant never entered that district”).
Bobo also argues that dismissal is warranted because he is not part of the conspiracy alleged in Counts One and Two. Instead, he claims that, at best, he had a “buyer-seller” relationship with Morales and the conspiracy charged is better characterized as a “rimless wheel” conspiracy.
A “rimless wheel” conspiracy, sometimes called a “hub and spoke” conspiracy “ ‘is one in which various defendants enter into separate agreements with a common defendant, but where the defendants have no connection with one another, other than the common defendant's involvement in each transaction.’ ” United States v. Swafford, 512 F.3d 833, 842 (6th Cir. 2008) (quoting Dickson v. Microsoft Corp., 309 F.3d 193, 203 (4th Cir. 2002)). It can be visualized by picturing a wagon wheel. At the center is the hub, with spokes radiating outward. “ ‘[W]ithout the rim of the wheel to enclose the spokes,’ a single, wheel conspiracy cannot exist but instead is a series of multiple conspiracies between the common defendant and each of the other defendants.” Id. (quoting Kotteakos v. United States, 328 U.S. 750, 755 (1946)). Even though a “ ‘single conspiracy does not become multiple conspiracies simply because each member of the conspiracy does not know every other member,’ it is necessary to show that each alleged member ‘agreed to participate in what he knew to be a collective venture directed toward a common goal.’ ” Id. at 841 (quoting United States v. Warner, 690 F.2d 545, 549 (6th Cir. 1982)).
To be sure, the essence of a criminal conspiracy claim is an agreement to commit an unlawful act. Iannelli v. United States, 420 U.S. 770, 777 (1975). “[I]t is the agreement which forms the nucleus of the offense.” United States v. Sinito, 723 F.2d 1250, 1256 (6th Cir. 1983).
An agreement between a willing seller and buyer to exchange drugs “might look like an agreement to ‘distribute’ (that is, ‘transfer’) drugs from the seller to the buyer in violation of § 841(a)(1),” but this is not a conspiracy because “two parties cannot conspire to commit a substantive crime when the crime itself requires two parties for its completion (such as dueling or prostitution).” United States v. Wheat, 988 F.3d 299, 307 (6th Cir. 2021). “[A]dditional ‘factors’ ․ [a]llow a jury to find an agreement between a buyer and seller [that] go beyond their own sale” making it part of a conspiratorial agreement, including “repeated purchases of large quantities of a drug from a seller”; “the method of payment for the buyer-seller transaction”; and “evidence of an enduring arrangement.” Id. at 308-09.
“At day's end, whether an illegal agreement exits will turn on all of the circumstances” and is “fact-specific.” Id. at 307. This determination is the office of the jury. For the reasons set forth above in relation to Bobo's venue argument, the Government has presented more than enough to preclude dismissal of the conspiracy charges.
Finally, insofar as Bobo is challenging the sufficiency of the allegations in Counts One and Two, that also fails. “An indictment adequately charges an offense if it (1) includes the elements of the offense intended to be charged, (2) notifies the defendant of ‘what he must be prepared to meet,’ and (3) allows the defendant to invoke a former conviction or acquittal in the event of a subsequent prosecution.” United States v. Cor-Bon Custom Bullet Co., 287 F.3d 576, 579 (6th Cir. 2002) (citing Russell v. United States, 369 U.S. 749, 763–64 (1962)). “To prove a drug conspiracy under 21 U.S.C. §§ 846, 841(a)(1), the government must prove ‘(1) an agreement to violate the drug laws, and (2) each conspirator's knowledge of, intent to join, and participation in the conspiracy.’ ” United States v. Matthews, 31 F.4th 436, 446 (6th Cir. 2022) (quoting United States v. Crozier, 259 F.3d 503, 517 (6th Cir. 2001)). To prove money laundering in violation of 18 U.S.C.§ 1956(h), “the government [i]s required to prove ‘(1) that two or more persons conspired to commit the crime of money laundering, and (2) that the defendant knowingly and voluntarily joined the conspiracy.’ ” Id. at 447 (quoting United States v. Powell, 847 F.3d 760, 781 (6th Cir. 2017)). As for the time frame, “[a]n indictment sufficiently alleges the duration of a conspiracy by ‘fix[ing] the end of the conspiracy and provid[ing] an approximate start date[.]’ ” United States v. Kincaid, 631 F. App'x 23 276, 279–80 (6th Cir. 2015) (quoting United States v. Vassar, 346 F. App'x 17, 19–20 (6th Cir. 2009)).
The Indictment meets all of these requirements. With respect to both the drug and money laundering conspiracy counts, it alleges that (1) the conspiracy began at least by January 2018 and continued until the date of the Indictment; (2) Bobo and other identified Defendants combined, conspired, confederated and agreed with each other; (3) they did so knowingly; and (4) they did so in order to commit an unlawful act in this district, either to distribute controlled substances (Count One) or to launder drug proceeds (Count Two).
Bobo's Motion to Dismiss (Doc. No. 1122) is DENIED.
V. Motions to Suppress
Kevin Oliva-Hernandez seeks to suppress evidence obtained from 216 Quiet Lane, Lavergne, Tennessee. (Doc. No. 1145). Jose Alvarado seeks the same with respect to the search of his residence located at 3486B McGavock Pike, Nashville, Tennessee. (Doc. No. 1257). Both searches were conducted pursuant to search warrants, with the search warrants for the Quiet Lane residence issued by Magistrate Judge Newbern and the warrant for the McGavock Pike premises issued by Magistrate Judge Frensley. Defendants present different grounds for suppression, but the applicable Fourth Amendment legal analysis is generally the same.
A. Summary of Governing Law
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const., amend. IV. “The ‘chief evil’ deterred by the Fourth Amendment is the physical invasion of the home.” United States v. Brown, 828 F.3d 375, 381 (6th Cir. 2016) (quoting Payton v. New York, 445 U.S. 573, 585 (1980)). To show probable cause, the officer submitting the oath or affirmation in support of the warrant must show “facts that indicate a fair probability that evidence of a crime will be located on the premises of the proposed search.” United States v. Crumption, 824 F.3d 593, 615 (6th Cir. 2016). The affidavit must adequately describe a “nexus between the place to be searched and the evidence sought.” United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc).
In assessing the sufficiency of the allegations, the court is limited to the four corners of the affidavit. United States v. Berry, 565 F.3d 332, 338 (6th Cir. 2009). Upon review, district courts must afford the issuing Magistrate Judge's probable cause determination “great deference.” United States v. Allen, 211 F.3d 970, 973 (6th Cir. 2000). On this point, the Supreme Court has “repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review.” Illinois v. Gates, 462 U.S. 213, 236 (1983). Rather, because of the deference owed, “a magistrate's decision to grant a search warrant should only be reversed if it was arbitrarily exercised.” United States v. Greene, 250 F.3d 471, 478–79 (6th Cir. 2001) (citing Allen, 211 F.3d at 973; United States v. Finch, 998 F.2d 349, 352 (6th Cir. 1993)).
B. 3486B McGavock Pike Search Warrant
The application/affidavit for a search warrant for 3486B was written by David Wilson, a United States Postal Inspector, and is almost 60 pages long. The alleged facts supporting the application, however, can be broken down into two distinct time frames – events occurring before May 2019, and those occurring between April and July 2020.
The investigation into Humberto Morales and his potential leadership of a drug trafficking organization began in March 2019 when agents intercepted a package that had been shipped from California to 113 Bakerstown Road, Antioch, Tennessee. Inside the package were three bricks, one consisting of a mixture of heroin and fentanyl, and the other two containing high purity methamphetamine. (Doc. No. 1138-1, Search Warrant Affidavit (“Aff.”), ¶ 8).
Subsequent investigation uncovered three cell phones Morales used while in prison, and a review of those phones led to possible co-conspirators in the drug operation, including Alvarado. (Id. ¶ 9). According to the application:
Review of the contents of these telephones verified that Morales and his co-conspirators routinely used WhatsApp, an encrypted communication service, to communicate regarding drug trafficking, drug proceeds, firearms, and violence. Messages contained on these telephones establish that Morales repeatedly advised others to discuss and arrange drug-related offenses over WhatsApp due to the encryption provided by WhatsApp. The vast majority of the WhatsApp communications found in these phone which have been reviewed so far contain discussions of such subjects. These communications include thousands of WhatsApp text messages and more than one-hundred drug-related photographs and videos. These messages include references to the [package] which was mailed to 113 Bakerstown Road.
(Id. ¶ 9b).
In the application, Inspector Wilson goes on to state that a review of the cell phones indicated that Alvarez used a cell phone with the number 6159978375 to communicate with Morales and that this number was found in Morales’ contacts on his LG phone. (Id. ¶ 10). The warrant application then identifies and describes a number of contacts between Alvarado and Morales during the February/March 2019 period, that Alvarado summarizes as follows:
• February 19, 2019 – Morales sent postal receipt with tracking number and note with coded drug language. Over the next few days there were multiple messages about locations and parcels. Alvarado ultimately sent Morales a video of himself opening a package in a kitchen with what appears to be drugs. Morales sends instructions on where to take the contents, and how to mix them up. Alvarado sent photos of ledgers.
• Morales sends messages about an individual in Mexico who cut off his finger as punishment for stealing drugs, along with a photo of the missing finger. He appears to be asking Alvarado's opinion on how to handle the situation.
• On February 28, 2019 Morales sent Alvarado information about another parcel, along with instructions to give another individual certain amounts of what is alleged to be drugs (in coded language). Alvarado sen[t] photos of what appears to be various types of drugs.
• On February 28, 2019 messages exchanged about Amazon packages delivered to Alvarado's house that were believed to be coffee cans with false bottoms.
• March 2 and 3, 2019 Morales provided instruction to wire money, Alvarado sent wire receipts in return.
• On March 6, 2019 Morales sent Alvarado a photograph of a US Mail receipt with a tracking number consistent with a package eventually intercepted that contained drugs. The package was to go to 113 Bakertown Road.
• March 8, 2019 Morales asked Alvarado to rent a storage unit for another individual.
• March 9, 2019 additional messages about package delivery and wiring money.
• Additional messages continued concerning ledgers, deliveries, and amounts that Alvarado should have on hand.
• On March 21, 2019 Morales asked Alvarado to obtain the address of a mechanic who was shot multiple times.
(Doc. No. 1138 at 3-4). At one point during this period, Morales instructed Alvarado to ditch his phone and replace it with another cheap one, but it is unclear whether Alvarado followed those instructions. (Doc. No. 1138-1, Aff. ¶ 8).
Alvarado's summary leaves out a number of detail of these events, but he seemingly does not contend that the alleged facts were not sufficient to support a search warrant had one been sought during this period (March 2019). If he did, this would be undercut by the additional allegations that on March 19, 2019, DEA agents seized $101,000 from Alvarado. (Id. Aff. ¶ 32).4
Alvarado's real bone of contention appears to be the gap between March 21, 2019 and April 2020. Even the Government concedes that “the investigation set forth in the application revealed no additional information after approximately May 2019 until April 2020.” (Doc. No. 1257 at 4).
With regard to the events from April 2020 until the time the search warrant was issued in July 2020, Wilson's affidavit states that law enforcement did not have the current subscriber information for telephone number 6159978375, but he believed that this was a cell phone still being used by Alvarado. He based that assumption on the following:
i. Federal search warrants issued by U.S. Magistrate Judge Frensley, and the related investigation, resulted in the seizure of evidence including a telephone and firearm related material from a person who was arrested on state drug trafficking charges within about the past week. A red Mercury Mountaineer, bearing Tennessee tag 9720Hl 9, which is registered to Jose Alvarado at 3486B McGavock Pike, Nashville, TN 37217, was parked at the location of this person's arrest. Agents searched that vehicle, did not find anything pertinent to their portion of the investigation, and left that vehicle at that location. This same vehicle, bearing the same license plate, was the vehicle being used by Alvarado when the referenced $101,000 cash seizure occurred.
ii. That person admitted under Miranda, in essence, that he was involved in the overall conspiracy, and was receiving controlled substances, including about two ounces of heroin per week from co-conspirator Avigael Cruz and others. A review of his cell phone showed contact with 6159978375, which was saved in that phone with the contact name of “Tranza Puto” and had saved communications between those two phones between April 14, 2020, and July 6, 2020, as well as multiple voice mails for which I have not yet determined the pertinent dates. The messages between the seized phone and 6159978375 included references to a .40 caliber pistol, which the arrested person's Mirandized statement showed had been provided by Alvarado to that person, who is a multi-convicted felon, in about January, 2020.
iii. That person stated that he had transferred that firearm, which he described as a Smith & Wesson .40 caliber pistol, and which is shown in photographs contained in that phone, to Avigael Cruz, who is also a multi-convicted felon for whom there is an outstanding federal arrest warrant. This person also correctly knew, through statements made to him by Alvarado, that $101,000 in cash had been seized from Alvarado. He further knew that Alvarado was involved in the drug trafficking conspiracy with a Tennessee state prisoner, who this person knew by the nickname of “Pelon,” which is the nickname of Humberto Morales. This arrested person also stated that he knew, from Alvarado's statements to him, that Alvarado had obtained that .40 caliber pistol from Morales’ father. This person also stated that he was involved in some construction work with Alvarado.
iv. Review of the texts between the arrested person's phone and 6159978375 showed that Alvarado asked that person for the .40 caliber pistol on April 18th and on May 22, 2020. On the latter date, that person responded that he had already told Alvarado that he did not have it any more, and was trying to replace it. Alvarado stated that he needed the gun because “they” were following him. However, investigators have not found messages between Alvarado and the other person for the earlier time period when the arrested person stated that Alvarado had provided him that pistol.
v. According to information subpoenaed by DEA in May 2020, the actual physical phone which was using 6159978375 at that time is the same physical phone which was activated with that number in July, 2019. It is likely that Alvarado is still using that same physical phone, and that the phone will contain information about Alvarado obtaining, possessing, and transferring that pistol as the arrested person stated in his Mirandized interview. If Alvarado has changed physical phones but kept the same phone number, it is likely that Alvarado kept that older physical phone as noted below based on my training and experience, as well as the recent seizure of two cellular telephones in similar circumstances from Tiffany Messick as I describe in this affidavit.5
vi. Those text messages also showed that Alvarado asked that person to help him with a construction job, and provided a specific address for that job. An Internal Revenue Service-Criminal Investigations Special Agent working on this investigation went to that address on Friday, July 10, 2020, to conduct surveillance. He observed construction work being performed at that address, including the specific type of construction referred to in the referenced messages. He also observed a person who he identified as Alvarado based on familiarity with Alvarado's appearance. That person eventually left the area in the Target Vehicle, which is registered to Jose Alvarado at the Target Premises. The IRS agent lost contact with that vehicle, and has not observed that vehicle again. During that surveillance, that agent called 6159978375, but no one answered. Later, after the person identified as Alvarado got into the Target Vehicle and left, that agent received a return call from that number, and noted that the person who called back appeared to be Hispanic who spoke accented English. That agent went back to that work site on Monday, July 13, 2020, but did not see workers at that location, although the jobsite looks like additional work is to be completed.
vii. According to information from a Homeland Security Special Agent involved in this investigation, Alvarado is ․ illegally in the United States [and] he is prohibited from possessing firearms or ammunition in and affecting commerce under Title 18, United States Code, Section 922(g)(5)[.]
(Id. ¶ 12d).
Inspector Wilson's affidavit also included the standard, boilerplate language about his knowledge and experience, and stated that drug traffickers (1) “typically maintain and have access to large amounts of cash”; (2) “maintain books, records, receipts, notes, ledger, airline tickets, money order, and other papers”; (3) “often hide contraband”; (4) “very often will conceal in their residences amount of currency ․ and other items of value”; and (5) “commonly maintain information such as names, addresses, telephone numbers, and other contact information of their associates or customers.” (Id. ¶ 37(a-e)). Inspector Wilson also opined that it would be “reasonably likely” that Alvarado would have kept his phones as that is the normal practice for most people because the cellphones contain personal information, such as photographs of family members that they do not want to discard. (Id. ¶ 37(g)).
The search warrant was issued and executed on July 21, 2020. Among other things, officers found several cell phones, identification cards in various names, two boxes of ammunition, a money counter and a banknote tester pin. (Doc. Nos. 1138-2, -3).
Alvarado argues that evidence from the warrant should be suppressed because the information in support of the warrant was stale, there was insufficient probable cause, and the search warrant was overbroad. The Court is unpersuaded by any of these arguments.
Had the search been executed in July 2020 based solely on the set of facts pertaining to Morales’ telephone contacts with Alvarado the year before and the purported sale of drugs, the Court would agree that the information was probably stale. See United States v. Frechette, 583 F.3d 374, 378 (6th Cir. 2009) (stating that 16-month old information “in the drug trade” would “usually” be stale). However, “[i]t is possible that even if a substantial amount of time had elapsed between ‘a defendant's last reported criminal activity’ and the issuance of the warrant, the warrant had not become stale.” United States v. Abboud, 438 F.3d 554, 572 (6th Cir. 2006). Furthermore, “recent events” can “refresh[ ] ․ otherwise stale information.” United States v. Spikes, 158 F.3d 913, 924 (6th Cir. 1998). Accordingly, whether information has grown stale “must be determined by the circumstances of the case.” Sgro v. United States, 287 U.S. 206, 210-11 (1932).
The factors to be considered in determining staleness are: “(1) the character of the crime (chance encounter in the night or regenerating conspiracy?); (2) the criminal (nomadic or entrenched?); (3) the thing to be seized (perishable and easily transferrable or of enduring utility to its holder?); and (4) the place to be searched (mere criminal forum of convenience or secure operational base?).” United States v. Frechette, 583 F.3d 374, 378 (6th Cir. 2009). None of these factors weigh in favor of finding that the information presented to Magistrate Judge Frensley was stale.
“First, the nature of [the] crime was ‘an ongoing drug trafficking conspiracy,’ and ‘[e]vidence of ongoing criminal activity will generally defeat a claim of staleness.’ ” United States v. Sinclair, 631 F. App'x 344, 348 (6th Cir. 2015) (citation omitted). Second, Alvarado was not nomadic. Rather, the affidavit suggests he lived in Nashville, purportedly ran a construction business here, had a consular ID card showing he resided at the 3468B McGavock Pike residence, and had at least one vehicle registered to him at that address. Third, the focus of the warrant was on securing documents, cell phones, and other things that had meaning to Alvarado and were not perishable. Fourth, the place to be searched was Alvarado's residence. In this sense, the location was more of a “secure operational base” than than a “mere criminal forum of convenience.”
Alvarado's arguments about insufficient probable cause and the lack of a nexus fare no better. “Probable cause is defined as ‘reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion.’ ” United States v. King, 227 F.3d 732, 739 (6th Cir. 2000) (quoting United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1990)). This “is not a high bar: It requires only the ‘kind of fair probability’ on which ‘reasonable and prudent [people,] not legal technicians, act.’ ” Kaley v. United States, 571 U.S. 320, 338 (2014) (quoting Florida v. Harris, 133 S. Ct. 1050, 1055 (2013)). Still, “[t]o justify a search, the circumstances must indicate why evidence of illegal activity will be found ‘in a particular place.’ There must, in other words, be a ‘nexus between the place to be searched and the evidence sought.’ ” United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (quoting United States v. Van Shutters, 163 F.3d 331, 336–37 (6th Cir. 1998)).
The information contained in Inspector Wilson's affidavit more than hurtled the low bar for probable cause and presented more than a fair probability that what agents were looking for would be found in Alvarado's residence. Not only was Magistrate Judge Frensley presented with details about the scope of the investigation, the affidavit sufficiently linked that information with Alvarado's residence. A fair reading of the affidavit suggests that the 3486B McGavock Pike residence was at least one of the bases for the Morales drug trafficking operation, and it does not require speculation to infer that this location would contain records, phone, and similar items relating to that operation.
Notwithstanding “the judicially developed exclusionary rule” that usually precludes the Government from introducing tainted evidence at trial, Illinois v. Krull, 480 U.S. 340, 347 (1987), the conclusion remains that the evidence seized at the McGavock Pike address should not be suppressed. This is because of the good faith exception announced in United States v. Leon, wherein the Supreme Court held that “evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrants” are not to be suppressed. 468 U.S. 897, 922 (1984). Pursuant to Leon, if the search warrant contains a “minimally sufficient nexus” between the illegal activity and the place to be searched, supporting an officer's “good-faith belief in the warrant's validity, even if the information provided was not enough to establish probable cause,” a court should not suppress the evidence seized from that search. Carpenter, 360 F.3d 591, 596 (6th Cir. 2004) (citing United States v. Van Shutters, 163 F.3d 331, 336 (6th Cir. 1998)).
Leon’s good faith exception, however, is itself subject to exceptions. It “does not apply in the following sets of circumstances: 1) the supporting affidavit contained knowing or reckless falsity; 2) the issuing magistrate wholly abandoned his or her judicial role; 3) the affidavit is ‘so lacking in probable cause as to render official belief in its existence entirely unreasonable;’ or 4) where the officer's reliance on the warrant was neither in good faith nor objectively reasonable.” United States v. Frazier, 423 F.3d 526, 533 (6th Cir. 2005) (quoting Leon, 468 U.S. at 923).
In his brief, Alvarado relies on the third exception to Leon’s good faith exception. He writes:
Officer[s’] belief in th[e] existence of probable cause was unreasonable where the officer knew the residence had been consensually searched and no contraband was found after the drug trafficking information was revealed, and that there was no indication that Alvarado possessed a weapon at the time of the search. That leaves the probable cause limited to messages concerning the transfer of a weapon to the criminal informant – whose phone law enforcement had already reviewed and determined had no messages. Reliance on this alone to support probable cause was unreasonable.
(Doc. No. 1138 at 13). Leaving aside that the third exception is usually reserved for bare bones affidavits, which Wilson's certainly was not,6 the Court is unconvinced.
As already noted, the affidavit was detailed and set forth the factual circumstances underlying it. The affidavit linked Alvarado to Morales, and Alvarado to the McGavock Pike address and a cellphone with the number 6159978375. In the days and months leading up to the issuance of the search warrant, the cellphone was still being used and a logical inference to be drawn from the totality of the circumstances was that Alvarado was still using the phone. There also was a fair probability cell phone could be found in his house.
For all of the foregoing reasons, Alvarado's Motion to Suppress (Doc. No. 1138) is DENIED.
C. Search Warrant for 216 Quiet Lane
On August 10, 2020, Magistrate Judge Newbern issued a search warrant for 216 Quiet Lane, Antioch, Tennessee. The application in support thereof was composed by Philip O'Connor, a Homeland Security Special Agent. The warrant was executed late that afternoon and resulted in the seizure of (1) $68,000 in cash (in stacks of $10,000); (2) counterfeit $100 bills; (3) a brick press; (4) ledgers suggesting drug and money transactions; (5) firearms; (6) ammunition; (7) cellular phones; (8) a note purportedly referring to drug quantities and a dollar amount; and (8) miscellaneous documents allegedly evidencing drug trafficking. (Doc. No. 1146-2). Those discoveries, in turn, led to the issuance of three additional search warrants from Magistrate Judge Newbern based upon additional applications.
Like the McGavock Pike affidavit, the one requesting a search of 216 Quiet Lane is lengthy. Having read (and re-read) Olivia-Hernandez's Motion, the Government's response, Defendant's reply, and Agent O'Connor’s affidavit, the Court finds it unnecessary to set forth the details of the supporting affidavit at this point because the filings raise more questions than answers.
For starters, Magistrate Judge Newbern issued the warrant at 5:09 p.m. on August 10, 2020. However, according to Oliva-Hernandez, a camera directed at the house that had been installed by law enforcement showed officers entering the house en masse armed with automatic weapons and protective shields at 3:24 p.m. and exiting at 3:30 p.m. Assuming this was a protective sweep conducted to secure the premises in anticipation of the warrant, why were “numerous agents ․ seen walking in and out of the house for the next hour and [a] half[?].” (Doc. No. 1146 at 5). Was this an illegal search, or something less sinister?
Turning to the affidavit itself, a key factor in the probable cause analysis is a Nissan Sentra, and its connection to the Quiet Lane residence. At times in the affidavit it appears that the Nissan might be the “target vehicle” referenced in Agent O'Connor’s affidavit. At other times the target vehicle appears to mean a black Ford truck. Take, for instance, paragraph 8 of O'Connor’s affidavit, which states:
8. As summarized below, the Target Vehicle left the Target Premises and attempted to deliver 1000 blue counterfeit Roxicodone pills to a cooperating defendant on August 10, 2020. Based on seizures of similar pills in this investigation, and contents of seized cellular telephones, these pills are pressed in Mexico, imported into the United States, and contain fentanyl, instead of being real oxycodone pills. This incident is related to a large-scale drug trafficking conspiracy, which was being operated by Humberto MORALES, a state prisoner serving a lengthy sentence as a result of crimes involving a home invasion in Franklin, Tennessee․
(Id. ¶ 8). The information that follows does not clarify or identify the referenced “target vehicle.”
In its response, the Government, through the use of parentheticals, states that the target vehicle mentioned in paragraph 8 was “a Ford truck.” That clarifying parenthetical was not before Magistrate Judge Newbern when she made the probable cause determination, however. Was Agent O'Connor’s use of “target vehicle” an intent to mislead her into thinking that the target vehicle was the Nissan? This would weigh into the probable cause calculus because elsewhere the affidavit states that, after agents installed a tracking device on July 15, 2020, the Nissan was observed most nights parked at the Quiet Lane residence. Observing the target vehicle drive off from the residence to a drug deal the very day the warrant was requested would certainly bolster probable cause.
Seemingly, there are other misstatements or half-truths in the affidavit. For example, in his affidavit, Agent O'Connor describes the take-down and arrest after the target vehicle left the Quiet Lane residence to meet with a confidential informant to consummate a prearranged drug deal. According to the affidavit:
On August 10, 2020, investigators observed the Target Vehicle leave 216 Quiet Lane and begin traveling towards the predetermined meet location. The Target Vehicle stopped in route at a market, but the occupants remained in the vehicle, an no one approached the vehicle. Agents were then directed to approach the vehicle since it was believed to contain the drugs ordered by the Defendant as described above. The driver was Kevin Alexander Oliva-Hernandez, and the sole other occupant was Jairo Isaias Rostran. Agents reported that Oliva had a gun on his person, and that Rostran had a bag of pills, which he tried to drop and conceal.
(Id. ¶ 27). This paragraph could be read as saying that both were arrested immediately upon exiting the car and that the drugs were found in the car. In fact, the next paragraph states that “[a] search of the Target Vehicle resulted in the seizure of evidence, including about 1,000 pills that are believed to contain fentanyl, a sum or cash, and the referenced firearm.” (Id. ¶ 28). However, in a later affidavit filed in support of a Criminal Complaint, Agent O'Connor suggested that Oliva-Hernandez may not even have been in the car when officers approached, and that Rostran tried to kick a Burger King bag containing the drugs underneath the car. This may be a minor discrepancy, but it is important in the sense that Oliva-Hernandez apparently was not on law enforcement radar as a part of the Morales conspiracy until August 10, 2020. If so, was the statement in the affidavit simply a bad summary, or was there intent to mislead by directly connecting Oliva-Hernandez to both the drugs and the gun, instead of simply connecting Oliva-Hernandez to the gun and Rostran to the drugs?
In making the foregoing observations, the Court recognizes that Agent O'Connor’s “affidavit should be reviewed in a commonsense-rather than a hypertechnical-manner, and the court should consider whether the totality of the circumstances supports a finding of probable cause, rather than engaging in line-by-line scrutiny.” United States v. Woosley, 361 F.3d 924, 926 (6th Cir. 2004) The Court also recognizes that “[s]earch warrants target places, not people.” United States v. Church, 823 F.3d 351, 353 (6th Cir. 2016). And, the Court recognizes there is “a presumption of validity with respect to the affidavit supporting the search warrant.” Franks v. Delaware, 438 U.S. 154, 171 (1978). Even so, the Court finds that Oliva-Hernandez has made a “substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit,” id., warranting a hearing.
Accordingly, a ruling Oliva-Hendandez's Motion to Suppress is RESERVED pending a hearing. The hearing is set for April 19, 2023, at 9:00 a.m.
VI. Motions for Hearing
Avigael Cruz has filed a “Motion for Pretrial Hearing on the Existence of a Conspiratorial Agreement and the Connection Thereto of the Defendant.” (Doc. No. 1141). Ricardo Martinez has filed a “Motion for Hearing Pursuant to Daubert/Kumho Tire.” (Doc. No. 1132). Both Motions will be denied.
A. Cruz's Motion for Pretrial Hearing Regarding Existence of a Conspiracy
Cruz filed this motion “to protect the defendant from unfair prejudice and potential contamination of the jury with hearsay statements in the event that no conspiracy can be proven.” (Doc. No. 1141 at 2). This is a legitimate concern because “[t]o admit statements of a co-conspirator under Rule 801(d)(2)(E), a trial court must find that: (1) the conspiracy existed; (2) the defendant was a member of the conspiracy; and (3) the co-conspirator made the proffered statements in furtherance of the conspiracy.” United States v. Warman, 578 F.3d 320, 335 (6th Cir. 2009) (citing United States v. Wilson, 168 F.3d 916, 920 (6th Cir. 1999)). “Whether the offering party has met this burden is a preliminary question of fact for the trial judge,” United States v. Kone, 307 F.3d 430, 442 (6th Cir. 2002), and the answer to that question is commonly known in this circuit as an “Enright finding.”7
The Sixth Circuit has identified three approaches that may be used to make the Enright finding regarding the admissibility of co-conspirator's statements. “One acceptable method is the so-called ‘mini-hearing’ in which the court, without a jury, hears the government's proof of conspiracy and makes the preliminary Enright finding.” United States v. Vinson, 606 F.2d 149, 152 (6th Cir. 1979). “The judge may also require the government to meet its initial burden by producing the non-hearsay evidence of conspiracy first prior to making the Enright finding concerning the hearsay's admissibility.” Id. Finally, a court may “admit the hearsay statements subject to later demonstration of their admissibility by a preponderance of the evidence.” Id. at 153. Each approach has certain advantages and disadvantages, and the trial judge has “considerable discretion” in determining which approach to use. United States v. Lamar, 466 F. App'x 495, 498 (6th Cir. 2012); Vinson, 606 F.2d at 153.
In the past, this Court has typically followed the last approach by conditionally admitting the hearsay statement subject to the Government proving the conspiracy at trial. It has done so most recently in multi-count, multi-defendant conspiracy cases such as United States v. Frazier, 3:17-cr-00130, a case involving members of the Mongols Motorcycle Club, and United States v. Darden, 3:17-cr-124, a case involving members of the Gangster Disciples. The Court had no difficulty using that approach in those cases and Cruz makes no argument as to how this case will be different. His Motion (Doc. No. 1141) is therefore DENIED.
B. Pretrial Hearing Pursuant to Daubert/Kuhmo Tire
The admissibility of expert testimony is governed primarily by Rule 702 of the Federal Rules of Evidence. It provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702. “This rule, as amended in 2000, reflects the Supreme Court's decisions in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and Kumho [Tire Co. v. Carmichael, 526 U.S. 137, 152–53 (1999), which applied Daubert to all expert testimony, not just scientific testimony.” In re Scrap Metal Antitrust Litig., 527 F.3d 517, 528 (6th Cir. 2008). In deciding the admissibility of expert testimony, Daubert teaches that a court is to consider certain factors, including whether the technique can be tested, whether it has been subjected to peer review, the rate of error, and whether the techniques is generally accepted in the scientific or relevant community. Daubert, 509 U.S. at 593-94.
The “gate-keeping” requirement imposed by Daubert, however, does not mean that a hearing is automatically required whenever expert testimony is going to be presented. To the contrary, the Sixth Circuit has repeatedly held that an actual hearing is not always required in order to comply with Daubert. United States v. Lilley, No. 15-6415, 2017 WL 7048806, at *13 (6th Cir. July 26, 2017); Nelson v. Tenn. Gas Pipeline Co., 243 F.3d 244, 249 (6th Cir. 2001); Greenwell v. Boatwright, 184 F.3d 492, 498 (6th Cir. 1999). In Nelson for example, the Sixth Circuit found Kuhmo’s language about trial courts having latitude “in deciding how to test an expert's reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability,” as supporting the proposition that a hearing is not automatically needed. 243 F.3d at 249 (quoting Kuhmo, 526 U.S. at 152). Other courts have found that, absent novel challenges, a hearing is not required regarding routine scientific evidence. See e.g. United States v. Mitchell, 365 F.3d 215, 246 (3d Cir. 2004) (holding that Daubert hearing was not necessary where no novel issue was raised to the admissibility of latent fingerprint identification evidence); United States v. Crisp, 324 F.3d 261, 268 (4th Cir. 2003) (again finding in the context of fingerprint evidence, that “[u]nder Daubert, a trial judge need not expend scarce judicial resources reexamining a familiar form of expertise every time opinion evidence is offered”).
The Government has identified 22 individual who may potentially offer expert testimony. Presumably, many of those experts will testify about relative routine matters such as how much a drug weighed, what type of drug it was, whether a firearm was capable of expelling a projectile by means of an explosive, and whether a firearm crossed state lines. Martinez has provided no reasons why a Daubert hearing is necessary for such witness, or for that matter, any of the potential expert witnesses identified by the Government. Certainly the Court cannot be expected to hold 22 separate Daubert hearings just to hold hearings.
Martinez's Motion for Hearing Pursuant to Daubert/Kumho Tire (Doc. No. 1132) is DENIED. This ruling, of course, does not prohibit Martinez or any other Defendant from requesting that they be allowed to voir dire the proposed expert outside of the presence of the jury where appropriate.
The substantive motions filed January 27, 2023 are resolved in accordance with the foregoing and the Clerk of the Court shall reflect the same on the docket. The Court believes that (except for sealed matters) this Memorandum Opinion and Omnibus Order either resolves all Motions filed that date or sets them for hearing. To the extent that is not the case, it should be brought to the Court's attention within seven days from entry of this Omnibus Order so that the Motion can be addressed and/or set for a hearing.
IT IS SO ORDERED.
1. To the extent that Motions could not be resolved by a written opinion or there was a need for an evidentiary hearing, the Court set aside the week of April 17, 2023 for any potential hearing or arguments. (Doc. No. 894 at 3).
2. Those status report are not shared with the Government. For this reason, the Court provides only a thumbnail sketch of what and how the discovery has been disseminated to defense counsel.
3. To provide some perspective, “[a] Terabyte is approximately one trillion bytes, or 1,000 Gigabytes,” and can “hold about 3.6 million 300 Kilobyte images or maybe about 300 hours of good quality video [or] 1,000 copies of the Encyclopedia Britannica. Ten Terabytes c[an] hold the printed collection of the Library of Congress.” Matter of Search of 624 NE 2nd St., No. 3:17-MC-00588-AC, 2019 WL 13074679, at *14 (D. Or. July 16, 2019) (citation omitted).
4. As it happened, Alvarado consented to a search of the 3486B McGavock Pike residence. While the search revealed little in the way of incriminating evidence, it did produce a currency counter and a pen used to detect counterfeit currency. After waiving his Miranda rights, Alvarado claimed that the $101,000 was from a construction business he was operating with Morales’ wife (Erika Vaquez), but later admitted that most of the money was from illegal drugs that had their origin in a drug trafficking enterprise Morales was operating from prison. Alvarado also admitted that the operation utilized cell phones, that he had been involved in bulk currency transactions since December 2019, and that he received instructions from Morales and Vasquez to pick up smaller amounts of case from others, amass the cash, and then transfer it in bulk to others. (Id. Aff. ¶¶ 32, 33). This information was included in the Affidavit presented to Magistrate Judge Frensley.
5. According to the affidavit, two telephones were seized from Messick's residence that contained information about drug trafficking and money laundering, even though Messick had not used those phones for months and had moved since the phones were last used in the conspiracy. (Id. Aff. ¶ 37(b)).
6. A “bare bones” affidavit “is commonly defined as one that states only ‘suspicions, beliefs, or conclusions, without providing some underlying factual circumstances regarding veracity, reliability, and basis of knowledge.’ Put more simply, a bare-bones affidavit is a conclusory affidavit, one that asserts “only the affiant's belief that probable cause existed.” United States v. White, 874 F.3d 490, 496 (6th Cir. 2017) (internal citations omitted).
7. The procedure had its origin in United States v. Enright, 579 F.2d 980, 986–87 (6th Cir. 1978).
WAVERLY D. CRENSHAW, JR., CHIEF UNITED STATES DISTRICT JUDGE
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