The opinion of the court was delivered by: Sand, J.
The eight-count Superseding Indictment in this case charges Defendants with offenses related to robberies and murders in the New York metropolitan area. Defendants Alton Davis and Roderick Gunn have brought motions to dismiss and for other relief. This opinion evaluates the following motions: (1) Gunn's motion to dismiss Counts One and Eight of the Indictment on double jeopardy grounds; (2) Davis' and Gunn's suppression motions; (3) Davis' and Gunn's discovery motions; (4) Davis' pro se motion to dismiss the Indictment for vagueness and duplicity; and (5) Gunn's pro se motions for insufficient evidence and speedy trial violation.*fn1
The alleged offenses in this case stem from drug-related robberies and murders that were committed in 2002 and 2003. The Indictment includes the following charges: (1) Davis and Gunn, together with co-defendants Derrilyn Needham and Ronald Knibbs, are charged with participating in a conspiracy from in or about July 2002 through in or about January 2003 to commit Hobbs Act robberies of suspected drug dealers, including (i) a robbery at a residence located at 194 Locustwood Boulevard, Elmont, New York, on or about October 31, 2002 ("Elmont robbery"); and (ii) a robbery at a residence located at 4385 Wickham Avenue, Bronx, New York, on or about January 21, 2003 ("Wickham robbery"), in violation of Title 18, United States Code, Section 1951 (Count One); (2) Davis, Gunn, and Needham are charged with committing and attempting to commit the Elmont robbery, in violation of Title 18, United States Code, Sections 1951 and 2 (Count Two), (3) Davis, Gunn, Needham, and Knibbs are charged with committing and attempting to commit the Wickham robbery, in violation of Title 18, United States Code, Sections 1951 and 2 (Count Three); (4) Davis is charged with using, carrying, and discharging a firearm during the Elmont robbery, in violation of Title 18, United States Code, Sections 924(c)(1)(A)(iii) and 2 (Count Four); (5) Davis is charged with using and carrying a firearm during a crime of violence, the Elmont robbery, and thereby murdering Stephanie Laing, in violation of Title 18, United States Code, Sections 924(j) and 2 (Count Five); (6) Davis, Gunn, Needham, and Knibbs are charged with using, carrying, and discharging a firearm during the Wickham Robbery and aiding and abetting another person in doing so, in violation of Title 18, United States Code, Sections 924(c)(1)(A)(iii) and 2 (Count Six); (7) Davis, Gunn, Needham, and Knibbs are charged with using and carrying a firearm during a crime of violence, the Wickham robbery, and aiding and abetting the use, carrying, and possession of firearms, and thereby murdering Gary Grey, in violation of Title 18, United States Code, Sections 924(j) and 2 (Counts Seven); and (8) Davis, Gunn, Needham, and Knibbs are charged with conspiracy to distribute and possess with intent to distribute marijuana, in violation of Title 21, United States Code, Section 846 (Count Eight).
Defendant Roderick Gunn moves to dismiss Counts One and Eight of the Indictment on double jeopardy grounds. Counts One and Eight charge Gunn with participating in a Hobbs Act robbery conspiracy and a narcotics conspiracy, respectively, which spanned from in or about July 2002 through in or about July 2003. Gunn argues that an Information to which he pled guilty on December 19, 2003 charges the same conspiracies as Counts One and Eight of the Indictment. For the reasons set forth below, Gunn's motion for dismissal of Counts One and Eight of the Indictment on the grounds of double jeopardy is denied.*fn2
On June 20, 2003, Gunn was arrested pursuant to a criminal complaint charging that he was an illegal alien in possession of a firearm in and affecting interstate commerce in violation of federal law. Beginning in July 2003, Gunn attended multiple proffer sessions with the United States Attorney's Office in an effort to secure a cooperation agreement. The proffer sessions were held with counsel present and pursuant to a proffer agreement. The notes of the proffer sessions make clear that Gunn disclosed criminal relationships with several individuals, including Derrilyn Needham and Ronald Knibbs, who are alleged co-conspirators in Counts One and Eight, as well as Javier Robles, Luis Alejandro, Donovan Francis, Chris Quinones, and Joey Figueroa. (Gunn Ex. A, Notes of Gunn's Statements to Law Enforcement on June 25, 2003, July 2, 2003, August 20, 2003, September 9, 2003, September 24, 2003.) Gunn also disclosed criminal acts committed by these individuals, including several criminal acts in which he was involved.
On December 19, 2003, Gunn pled guilty pursuant to a cooperation agreement ("Agreement") to Information 03 Cr. 1277 (WHP) ("Information"). The Information includes six counts, including two conspiracy counts: conspiracy to commit robberies of narcotics dealers from in or about summer 2001 through in or about summer 2002, in violation of Title 18, United States Code, Section 1951, and conspiracy to distribute an unspecified quantity of marijuana between in or about 2002 and in or about 2003, in violation of Title 21, United States Code, Section 846. Gunn's Agreement includes an appendix that specifically lists criminal conduct that Gunn informed the police that he was involved in, including six specific robberies that he had committed between the summers of 2001 to 2002. Gunn also proffered information about robberies in which he was not involved. Specifically, Gunn apprised the Government that he knew a man named "B"-which the Government discovered is an alias for Defendant Alton Davis-and that "B" had participated in a robbery on Long Island, near the Belmont racetrack, in the fall of 2002 during which a woman named Stephanie was shot. (Gunn Ex. A, Notes of Gunn's Statements to Law Enforcement on July 2, 2003.) Gunn did not admit to any involvement in this robbery. (Gunn Br. 24.) The six robberies to which Gunn did admit involvement are labeled Exhibit A to the Agreement.
The Agreement also includes Gunn's assurance that his disclosures were truthful and complete. It provides the following:
It is understood that the defendant (a) shall truthfully and completely disclose all information with respect to the activities of himself and others concerning all matters about which this Office inquires of him, which information can be used for any purpose; (b) shall cooperate fully with this Office, Bureau of Alcohol, Tobacco, Firearms and Explosives, and any other law enforcement agency designated by this Office; . . . (f) shall bring to this Office's attention all crimes which he has committed, and all administrative, civil, or criminal proceedings, investigations, or prosecutions in which he has been or is a subject, target, party, or witness; and (g) shall commit no further crimes whatsoever. . . . (Gunn Ex. C, Gunn's Cooperation Agreement of December 16, 2003 at 3.) With respect to immunity, the Agreement expressly states that protection is provided only for the crimes set forth in the Agreement. It reads as follows:
[I]f the defendant fully complies with the understandings specified in this Agreement, he will not be further prosecuted criminally by this Office for any crimes . . . related to his participation as described in Exhibit A to this Agreement, to the extent that he has disclosed such participation to this Office as of the date of this Agreement. This Agreement does not provide any protection against prosecution for any crimes except those set forth above. (Gunn Ex. C at 4) (emphasis added)
Despite Gunn's assurances that he was truthful and provided full disclosure, Gunn's disclosure was not complete. At debriefing sessions after his plea, without counsel present, Gunn admitted to robberies about which he had not informed the Government prior to his plea. Gunn specifically admitted to involvement in robberies committed with Alton Davis that resulted in the murders of Stephanie Laing at Locustwood Boulevard in Elmont, New York and Gary Grey at Wickham Avenue in Bronx, New York.*fn3 (Gunn Ex. D, Notes of Gunn's Statements on August 14, 2004 and October 25, 2004.) Gunn also identified Davis for law enforcement officials from a photo array.
On October 28, 2004, Gunn met with the Government. With counsel present, Gunn entered into a proffer agreement and repeated the details of robberies to which he admitted in his post-conviction debriefing sessions. In three subsequent proffer sessions, Gunn admitted to involvement in twelve other drug-related robberies and burglaries that he had not previously disclosed to the Government. On August 19, 2005, the Government advised Gunn of its belief that he breached the Agreement. The Government also informed Gunn that it was assessing the possibility of rehabilitating Gunn as a cooperating witness. Ultimately, the Government rejected Gunn's offer to cooperate.
The Fifth Amendment provides that "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. "[O]nce a defendant is placed in jeopardy for an offense, and jeopardy terminates with respect to that offense, the defendant may neither be tried nor punished a second time for the same offense." Sattazahn v. Pennsylvania, 537 U.S. 101, 123 (2003). The question presently before this Court is whether the conspiracies charged in the Indictment are factually distinct from the conspiracies to which Gunn pled in the 2003 Information such that prosecution of the Indictment does not constitute double jeopardy. See United States v. Maslin, 356 F.3d 191, 196 (2d Cir. 2004).
We look to a variety of factors in determining whether two conspiracies amount to the same offense. The factors to be considered are as follows:
(1) the criminal offenses charged in successive indictments; (2) the overlap of participants; (3) the overlap of time; (4) similarity of operation; (5) the existence of common overt acts; (6) the geographic scope of the alleged conspiracies or location where overt acts occurred; (7) common objectives; and (8) the degree of interdependence between alleged distinct conspiracies.
United States v. Korfant, 771 F.2d 660, 662 (2d Cir. 1992). The Court applies these factors with a "lively awareness that no dominant factor or single touchstone determines whether [the compared conspiracies] appear in fact and in law the same." United States v. Macchia, 35 F.3d 662, 668 (2d Cir. 1994) (quotation omitted).
Gunn asserts that Counts One and Eight of the Indictment-the alleged conspiracies with co-defendants Davis, Needham, and Knibbs to commit Hobbs Act robberies of suspected drug dealers from in or about July 2002 through in or about January 2003 and to distribute and possess with intent to distribute marijuana from in or about July 2002 through in or about January 2003-charge the same conspiracies to which Gunn pled guilty in the Information.*fn4 As stated previously, Gunn's Information covered conspiracies to commit robberies of narcotics dealers from in or about summer 2001 through in or about summer 2002 and to distribute an unspecified quantity of marijuana between in or about 2002 and in or about 2003.
The criminal defendant carries the initial burden of putting his double jeopardy claim at issue by making a non-frivolous showing of double jeopardy. United States v. Estrada, 320 F.3d 173, 181 (2d. Cir. 2003). If a defendant makes this prima facie showing, the burden shifts to the government to prove by a preponderance of the evidence that the conspiracies do not constitute the same offense. Id. Gunn's papers assert several similarities between the offenses at issue in the Information and the Indictment. Specifically, both offenses are alleged to be Hobbs Act robbery conspiracies that involved Gunn, Needham, and Knibbs, occurred in the New York metropolitan area, and had the common objective of stealing drugs or drug proceeds from suspected drug dealers. These similarities are sufficient for Gunn to meet his burden of making a non-frivolous showing of double jeopardy. However, upon further analysis we find that these similarities exist at a relatively general level. When the two conspiracies are compared at a "particular level," we find the dissimilarities between the two Hobbs Act conspiracies sufficient to satisfy the Government's burden. E.g., Macchia, 35 F.3d at 668; Estrada, 320 F.3d at 173.
Comparing the distinct modes of operation highlights two salient dissimilarities between the two conspiracies: none of the robberies in the Information resulted in murders and none of the robberies in the Indictment included police impersonations. In evaluating the modes of operation used in the conspiracies, the Court looks to the particular modes employed to further the conspiracies and not merely to the general means employed to achieve the broad objectives. Macchia, 35 F.3d at 670. As stated above, the conspiracy allegations in the Information concerned robberies of suspected drug dealers in which the robbers generally impersonated police officers and threatened the victims at gunpoint but did not kill them. In contrast, the conspiracy charged in the Indictment did not involve any police impersonation and each robbery resulted in Davis killing the victims of the robberies. Thus, the Court finds that this factor significantly supports the conclusion that the two conspiracies are factually distinct.
Similarly, in considering the overlap of co-conspirators, the Court is concerned with the specific characteristics of the conspiracies at issue. The Court does not merely count the number of overlapping participants; we instead analyze the overlapping participation or nonparticipation in relation to the relevant similarities and differences between the conspiracies. Macchia, 35 F.3d at 670. Although there is overlap of co-conspirators between the two conspiracies in the Information and the Indictment, the conspiracy to which Gunn pled in his Information did not include the participation of Alton Davis. Davis is alleged to have led the conspiracy charged in the Indictment and to have killed both of the victims at Elmont and Wickham. Davis' absence is thus particularly relevant because of his role in the conspiracy charged in the Indictment and the fact that the conspiracy to which Gunn pled in the Information did not include the alleged murders that resulted from Gunn's criminal relationship with Davis. Gunn argues that the particularly relevant co-conspirator is Needham, not Davis. Gunn believes that Needham is of particular relevance to the analysis because she played the same role in both conspiracies, providing information about the alleged victims. While Needham may have played a similar role in both conspiracies, we find the absence of Davis to be the primary distinction between the conspiracies given the relevant differences between the two conspiracies outlined above.
The lack of interdependence between the two conspiracies is also evidence that the Government has appropriately identified two separate conspiracies. Gunn argues that the conspiracies were not interdependent because Needham provided information about the targets to both conspiracies. However, Second Circuit analysis in similar cases suggests that interdependence should be measured by the dependence of the success of the conspiracies on one another. See United States v. Guzman, 2001 WL 290508, at *55 (2d Cir. Mar. 23, 2001). In this case, the ultimate success of the alleged robberies pled to in the Information did not have a corresponding effect on the outcome of the robberies attempted by Davis' crew. E.g., id.; Estrada, 320 F.3d at 184.
Significantly, the two conspiracies took place over essentially distinct time periods. Gunn pled guilty to a conspiracy that existed from the summer of 2001 to the summer of 2002. In the present case, Gunn is charged with a conspiracy that existed from July 2002 until January 2003. This is not a case where the Government is trying a defendant on a smaller conspiracy wholly contained within the scope of larger conspiracy or where the conduct in the current prosecution was taken into account in a prior proceeding. See United States v. Calderone, 982 F.2d 42, 48 (2d Cir. 1992); United States v. Annabi, 771 F.2d 671, 672 (2d Cir. 1985); United States v. Goris, 93 Cr. 1026, 1994 WL 394961, at *2 (S.D.N.Y. July 26, 1994). In this case, the first conspiracy only covered the robberies that did not result in murder and the second conspiracy only includes the robberies that resulted in murder. In such an instance, where the conspiracy alleging murder is brought second and for a distinct timeframe, the opportunity for prosecutorial abuse is not as great. Cf. Macchia, 35 F.3d at 669 ("[W]here the smaller conspiracy is charged first, there is not the same opportunity for prosecutorial abuse. . . .").
The Second Circuit has remained conscious of prosecutorial abuse (or absence thereof) in the double jeopardy context because of the "ease with which prosecutors can draft indictments that allege what appear to be separate conspiracies but may actually be parts of an overall conspiracy." Macchia, 35 F.3d at 670; United States v. Mallah, 503 F.2d 971, 983 (2d Cir. 1974). The absence of prosecutorial abuse is clear in this case. The record supports the conclusion that the Government did not know about Gunn's involvement in either the Elmont or Wickham robberies when Gunn pled to the Information. This lack of knowledge is largely the result of Gunn's misleading statements during his pre-plea proffer sessions. It is uncontested that Gunn did not confess to either the Elmont or Wickham robbery during his pre-plea proffer session despite his guarantee in his plea agreement that he was truthfully and completely disclosing all relevant information regarding these charges.*fn5 In fact, during his plea allocution, Gunn stated that the conspiracy existed only from the summer of 2001 to the summer of 2002.
The Government's lack of knowledge concerning the Davis robberies further supports our finding that the Indictment does not violate the Double Jeopardy Clause. In a concurring opinion, then Chief Judge Newman observed that "[i]t is . . . likely that the prosecution can avoid a jeopardy defense in those situations where the facts concerning the greater conspiracy became known (and were not reasonably knowable) only after the prosecution for the smaller conspiracy." Macchia, 35 F.3d at 673 (Newman, C.J., concurring); see also Calderone, 982 F.2d at 48 ("We need not decide whether the Government would be permitted to proceed if it could show that evidence of a larger conspiracy came to its attention only after a prior prosecution for a smaller, wholly contained conspiracy. . . ."). Supreme Court case law in an analogous context also suggests that double jeopardy concerns are mitigated where the facts relevant to the succeeding charge "have not been discovered despite ...