The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
Pursuant to Rule 41 of the Federal Rules of Criminal Procedure, Defendant Russell Defreitas moves to suppress evidence seized from an apartment in Brooklyn, New York. Pursuant to the Sixth Amendment to the United States Constitution, all defendants move to suppress certain out-of-court statements, or, in the alternative, to sever the trial pursuant to Federal Rule of Criminal Procedure 14(a).*fn1 Defendants Kareem Ibrahim and Abdul Kadir also move for severance on the ground of prejudicial spillover. For the reasons set forth below, Defreitas' motion to suppress evidence seized from the Brooklyn apartment is denied in its entirety. The motions to suppress the out-of-court statements are granted in part and denied in part. Finally, the motions to sever the trial are denied in their entirety.
Familiarity with background of this case is presumed. See generally United States v. Defreitas et. al., 2010 WL 1223244 (E.D.N.Y. Mar. 24, 2010). The court reiterates the following undisputed facts as they relate to the issues at bar. On June 1, 2007, Joint Terrorism Task Force ("JTTF") agents arrested Defreitas pursuant to a warrant, and transported him to 26 Federal Plaza, New York, New York. There, he made a number of statements to the agents prior to invoking his Miranda rights. (See Docket Entry No. 159, Ex. A.) Also on June 1, the government requested extradition of Ibrahim, Kadir and Abdel Nur from Trinidad and Tobago, pursuant to an extradition treaty between that country and the United States. Kadir was arrested in Trinidad that same day, and Ibrahim was arrested on June 2. Nur surrendered to Trinidadian officials on June 5, 2007. On August 6, 2007, the Trinidadian government commenced extradition proceedings against these three defendants. After extradition to the United States was granted, each defendant sought habeas relief from a Trinidadian court, which was denied. In the course of these habeas proceedings, each of the three defendants, represented by Trinidadian counsel, filed sworn affidavits. (See id. Exs. B--D.) The Trinidadian court denied defendants' habeas petitions and they were extradited to the United States.
On February 28, 2008, JTTF agents obtained a warrant to search the premises located at 740 Euclid Avenue, Apartment 6G, in Brooklyn, New York, where Defreitas had resided prior to his arrest. (See generally Addonizio Aff., Ex. G.) The warrant authorized the seizure of:
[c]ertain property, namely, items, documents and other related information concerning communications, travel, bank accounts and contacts of defendants charged with terrorism-related crimes in the Eastern District of New York and other individuals engaged in terrorist-related activity, all of which are related to a conspiracy to unlawfully deliver, place, discharge and detonate an explosive device in, into and against a public transportation system, to wit: John F. Kennedy International Airport, and an infrastructure facility, to wit: fuel tanks and pipelines at John F. Kennedy International Airport, with the intent to cause death and serious bodily injury and the intent to cause extensive destruction of such system and facility, where such destruction would result in and would be likely to result in major economic loss, and this constitutes evidence, fruits and instrumentalities of violations of federal law, including 18 U.S.C. § 2332f(a)(1). (Id., Ex. G at 9--10.) While executing the warrant on March 5, 2008, the JTTF agents "seized various items of evidence described in the warrant, and also removed the remaining property from the apartment, which . . . is owned by New York City." (Id. ¶ 8.) "JTTF agents inventoried both the evidence and the remaining property." (Id.; see also id. Ex. H (providing inventory).) On March 30, 2010, in response to the court's Order, the government specified which items were seized pursuant to the warrant, and which were simply "being held for safekeeping [and] not intend[ed] to [be] offer[ed] . . . at trial." (Docket Entry No. 182, at 2.)
A. Scope of the Brooklyn Search Warrant
Agents executing a warrant are bound by its scope. See Horton v. California, 496 U.S. 128, 140 (1990). In interpreting a warrant's scope, agents "have some discretion" and their interpretation should be "commonsensical," not "hyper-technical." United States v. Salameh, 54 F. Supp. 2d 236, 277 (S.D.N.Y. 1999), aff'd, 16 F. App'x 73 (2d Cir. 2001); see also United States v. Catapano, 2008 WL 3992303, at *3 (E.D.N.Y. Aug. 28, 2008) (noting that a broad interpretation of a search warrant as directed by Salameh is proper as it "provid[es] the agents with the discretion necessary to reasonably conduct a search").
The warrant in question authorized the seizure of "items, documents and other related information concerning communications, travel, bank accounts and contacts of defendants . . . ." (Addonizio Aff., Ex. G at 9--10.) Having carefully reviewed the list of seized items which the government may offer at trial, the court is satisfied that all of them fall within the scope of the warrant. (See id. Ex. H (listing, inter alia, "One Envelope containing Queens County Savings Bank statement . . . One Caribbean Airline confirmation . . . One white Southwestern Bell Freedom Phone . . . One Black Phonebook/Planner").) Accordingly, Defreitas' motion to suppress these items is denied. The government will, of course, have to demonstrate the relevance of any item it attempts to introduce at trial in accordance with Federal Rules of Evidence 401, 402 and 403.
B. Defendants' Out-of-Court Statements
1. Bruton/Richardson Redaction
"[A] defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating [statement] of a non-testifying co-defendant is introduced at their joint trial, even if the jury is instructed to consider the [statement] only against the co-defendant." Richardson v. Marsh, 481 U.S. 200, 207 (1987) (citing Bruton v. United States, 391 U.S. 123, 135--36 (1968)). While the Confrontation Clause problem is mitigated when the defendant's name is redacted from the statement in question, such statements can still violate Bruton if they "obviously refer" to the defendant and "involve inferences that a jury ordinarily could make immediately, even were the [statement] the very first item introduced at trial." Gray v. Maryland, 523 U.S. 185, 196 (1998).
As the Second Circuit has noted, "[t]he critical inquiry is always whether introduction of a [statement] at a joint trial presents an 'overwhelming probability' that the jury will not be able to follow an instruction limiting consideration of the [statement] to the declarant defendant." United States v. Jass, 569 F.3d 47, 56 n.5 (2d Cir. 2009) (quoting Richardson, 481 U.S. at 208). Acknowledging that "the line between testimony that falls within Bruton's scope and that which does not is often difficult to ...