The opinion of the court was delivered by: Gary L. Sharpe, District Judge.
MEMORANDUM-DECISION AND ORDER
Karl Bourassa and David Levesque-Gordeau were indicted for participating in marijuana trafficking and importation conspiracies and related offenses. (See 2d Superseding Indictment, Dkt. No. 33.) Bourassa seeks pretrial relief as follows: (1) suppression of statements, physical evidence, and electronically intercepted conversations; (2) a hearing under United States v. Wade, 388 U.S. 218 (1967); and (3) a severance. (See Bourassa Omnibus Mot ., Dkt. No. 162.) Levesque-Gordeau seeks pretrial relief as follows: (1) suppression of statements and physical evidence; and (2) a severance. (See Levesque-Gordeau Omnibus Mot., Dkt. No. 163.) The government has responded and, at least in part, opposes the relief sought. (See Govt Resps., Dkt. Nos. 167, 168.)
As to Fourth Amendment intrusions, the government asserts that Levesque-Gordeau failed to satisfy his burden of production because he did not file an affidavit demonstrating that a warrantless search or seizure occurred. However, the government misconstrues the courts prior decisions regarding the foundational prerequisite for suppression hearings. See, e.g., United States v. Miller, 382 F.Supp.2d 350 (N.D.N.Y.2005). The issue is not what the defendant has filed but whether the parties concur that a warrantless search or seizure actually occurred. The government concedes that it did. (See Govt Resp. at 7, Dkt. No. 167.) Thus, Levesque-Gordeau has met his burden of production, and a hearing is necessary to determine whether the government can prove that the search and seizure were justified by some Fourth Amendment exception to the search warrant requirement. The court cannot make that determination on paper without a stipulation of undisputed facts. There is no stipulation.*fn1
Similarly, the governments opposition is misplaced-at least in par-tregarding a hearing to determine the admissibility of Levesque-Gordeaus statements. (See id. at 13.) The government correctly observes that a defendant must generally assert custody and interrogation to satisfy the two-pronged Miranda suppression predicate. However, the government concedes that the statements were made in the context of a vehicle stop and a Terry encounter. Clearly, there are factual issues about both the stop itself and the scope and duration of the subsequent encounter that impact the extent to which, if at all, those issues bear on determinations regarding custody and taint. Again, the court must conduct a hearing to resolve these issues. And while it is a closer call as to whether Levesque-Gordeau has provided a sufficient factual predicate to warrant suppression of his statements under the voluntariness prong of the Fifth Amendment, the court will permit, notwithstanding the records sparseness, litigation of the issue since a hearing must be conducted regardless.
As for Levesque-Gordeaus motion to suppress electronic surveillance, the motion is denied with leave to renew. As the court understands the motion, Levesque-Gordeau was simply protecting his rights because discovery was not completed, and the government did not address this issue in its response. If the issue remains once discovery is complete, Levesque-Gordeau may renew his motion.
As to Bourassa, the government again concedes that the April 15, 2008 stop of Bourassas vehicle was warrantless and that statements to police ensued. Accordingly, a hearing is required to determine whether any stop, search, and subsequent statements are admissible. The court also extends its earlier caveat to Bourassa concerning the voluntariness prong of the Fifth Amendment. And as for his identification argument, the government concedes that a pretrial identification procedure occurred. Therefore, the defendant is entitled to a Wade hearing.
Each defendant also seeks a severance pursuant to Rules 8 and 14 of the Federal Rules of Criminal Procedure. Neither has satisfied his obligation to demonstrate prejudice, and the motions to sever are consequently denied. See United States v. Vasconcellos, 658 F.Supp.2d 366, 375-76 (N.D.N.Y.2009). The court observes, however, that the government did not address the Bruton issue. See Bruton v. United States, 391 U.S. 123 (1968). Accordingly, the defendants are free to renew their motion if, after a suppression hearing, there remain irreconcilable Bruton problems.
Lastly, the court observes that both defendants are represented by Terrence L. Kindlon, Esq., and the underlying docket does not reflect any inquiry into the propriety of joint representation. See FED. R.CRIM. P. 44(c). Accordingly, the court has also issued an Order pursuant to United States v. Curcio, 680 F.2d 881 (2d Cir.1982), and will proceed in accordance with the terms of that Order. To avoid suppression hearing delays, the court will schedule such hearings to follow resolution of the joint-representation issue.
Accordingly, and based upon the foregoing, it is hereby
ORDERED that the Clerk is hereby directed to schedule suppression hearing(s) and a Wade hearing at a date and time following any Curcio hearing necessitated by the separate Curcio Order issued this date; and it is further
ORDERED that Levesque-Gordeaus motion to suppress conversations intercepted pursuant to electronic surveillance is DENIED with leave to renew; and it is further
ORDERED that Levesque-Gordeau and Bourassa motions for a severance are DENIED with leave to renew if, following suppression hearings, Bruton issues remain unresolved; and it is further
ORDERED that the Clerk provide a copy of this Memorandum-Decision and ...