The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge.
Defendant Victor D'Acosta Bourne ("Bourne") is charged in a superseding indictment with various crimes stemming from his alleged participation in a Drug Trafficking Organization ("DTO" or the "Bourne Organization"), and Defendant Marie Alleyne ("Alleyne") is charged with various crimes related to her alleged involvement in money laundering and structuring the proceeds of the DTO. (See S-5 Superseding Indictment ("S-5 Indictment") (Docket Entry # 228).) The parties have made numerous pretrial motions,*fn1 and the court heard argument on several of these motions on August 26, 2011 (see Pretrial Mot. Hearing Tr.) and September 13, 2011 (see Suppression Hearing Tr.). On September 13, 2011, the court also held a suppression hearing related to Alleyne's Motion to Suppress. (Suppression Hearing Tr.; Alleyne Notice of Mot. to Suppress (Docket Entry # 179).) As set forth below, the parties' pretrial motions are granted in part and denied in part.
The Fifth Superseding Indictment ("S-5 Indictment") charges that Bourne, while employed as a fleet service clerk for American Airlines at John F. Kennedy International Airport ("JFK"), "was the principal leader of a narcotics trafficking organization and continuing criminal enterprise operating in the New York metropolitan area and the Caribbean," (the "Bourne Organization"). (S-5 Indictment ¶ 6.) The Government alleges that between 2000 and 2009, the Bourne Organization smuggled over 150 kilograms of cocaine into the United States from destinations in the Caribbean by hiding it aboard American Airlines flights to JFK. (Id. ¶¶ 8-10.) It further alleges that the Bourne organization distributed cocaine and over 5,000 kilograms of marijuana both domestically and internationally, and that distribution occurred in part through a footwear business in Brooklyn, New York and another business in Barbados. (Id. ¶ 8, 11.) The S-5 Indictment charges that Alleyne conspired with Bourne to structure transactions with financial institutions, and to engage in monetary transactions designed to conceal the proceeds of the Bourne Organization's drug trafficking. (Id. ¶¶ 12-13.)
Bourne is charged with the following crimes: engaging in a continuing
criminal enterprise, in violation of 21 U.S.C. § 848;*fn2
one count of cocaine importation conspiracy, in violation of
21 U.S.C. §§ 963, 960(a)(1), 960(b)(1)(B)(ii); one count of conspiracy
to distribute cocaine, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(ii)(II); four
counts of cocaine importation, in violation of 21 U.S.C. §§ 952(a),
960(a)(1), 960(b)(1)(B)(ii); two counts of possession of cocaine with
intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(ii)(II); two counts of attempted possession of cocaine
with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(ii)(II); one count of international marijuana
distribution conspiracy, in violation of 21 U.S.C. §§ 963, 959(c),
960(b)(1)(G); one count of attempted international marijuana
distribution conspiracy, in violation of 21 U.S.C. §§ 963, 959,
960(b)(2)(G); and, one count of conspiracy to distribute marijuana, in
violation of 21 U.S.C. §§ 846, 841(b)(1)(B)(vii). Both Bourne and
Alleyne are charged with: one count of money laundering conspiracy, in
violation of 18 U.S.C. § 1956(h); and, one count of structuring
conspiracy, in violation of 31 U.S.C. § 5324(d)(2). Alleyne is charge
with six counts of structuring, in violation of 31 U.S.C. §§
II.DEFENDANTS' PRETRIAL MOTIONS
A.Alleyne's Motion to Sever
Alleyne moved to sever the charges against her from those against Bourne. (Alleyne Mem. (Docket Entry # 179-4) at 2-5.) Alleyne argues that she will suffer spillover prejudice from the evidence introduced against Bourne because whereas she is charged with money laundering and structuring charges, he faces narcotics trafficking charges. (Id. at 2-4.) Alleyne contends that the jury will not be able to separate out the allegations against her from the "veritable mountain of evidence having nothing whatever to do with [her] finance type charges," and that "the sheer number of conspiracies" charged will confuse the jury. (Id. at 4.)
At the August 26, 2011 hearing, the court denied Alleyne's Motion to Sever. (Pretrial Mot. Hearing Tr. at 28.) This decision is because the court "should grant a motion for severance only if there is a serious risk that a joint trial would compromise a specific trial right of the moving defendant or prevent the jury from making a reliable judgment about guilt or innocence." United States v. Miller, 116 F.3d 641, 679 (2d Cir. 1997) (quotation marks omitted); see also Fed. R. Crim. Pro. 14(a) (district court may sever defendants' trials where joinder "appears to prejudice a defendant or the government"). Although cases may arise "in which the sheer volume and magnitude of the evidence against one defendant so dwarfs the proof presented against his co-defendant that a severance is required to prevent unacceptable spillover prejudice," United States v. Spinelli, 352 F.3d 48, 55 (2d Cir. 2003), "differing levels of culpability and proof are inevitable in any multi-defendant trial and, standing alone, are insufficient grounds for separate trials," United States v. Carson, 702 F.2d 351, 366-67 (2d Cir. 1983).
Here, what Alleyne characterizes as spillover prejudice is actually
direct evidence of the money laundering charge against her. The S-5
Indictment charges that Alleyne conspired with Bourne to structure
financial transactions and launder the proceeds of Bourne's alleged
drug trafficking conspiracy. (S-5 Indictment ¶¶ 55, 57-58.) Because
the Government must prove that Alleyne conspired to conceal the
proceeds of drug trafficking, see 18 U.S.C. § 1956(a)(1),*fn3
much of the drug evidence against her coconspirator, Bourne,
will be directly admissible against her. See United States v. Rosa, 11
F.3d 315, 341 (2d Cir. 1993) ("Evidence at the joint trial of alleged
coconspirators that, because of the alleged conspiratorial nature of
the illegal activity, would have been admissible at a separate trial
of the moving defendant is neither spillover nor prejudicial.");
Spinelli, 352 F.3d at 55 ("Joint trials are often particularly
appropriate in circumstances where the defendants are charged with participating in
the same criminal conspiracy."). Additionally, even if some evidence
admissible against Bourne would be inadmissible against Alleyne,
Alleyne has not identified any specific evidence that will cause her
substantial prejudice if it is introduced against Bourne at trial.
Carson, 702 F.2d at 367 ("[T]he fact that evidence may be admissible
against one defendant but not another does not necessarily require a
severance."); Spinelli, 352 F.3d at 55 (holding that a defendant must
demonstrate that she suffered substantial prejudice from the
introduction of evidence against a co-defendant that would be
inadmissible against her). Moreover, the court will be able to remedy
any spillover prejudice by instructing the jury to consider the
charges and evidence against each defendant separately. See Miller,
116 F.3d at 679. Alleyne may supplement her proposed jury instructions
with an instruction to this effect.
B.Alleyne's Motion to Suppress Evidence Obtained From Her Residence
Alleyne moves to suppress the fruits of the search of her residence at 848 Linden Boulevard, Brooklyn, New York, which occurred on the morning of October 14, 2010.*fn4
(Alleyne Mem. at 6-10.) Alleyne contends that, after arresting her outside of her home, agents conducted an unlawful warrantless search of her residence, and relied on information obtained through that search to later obtain a search warrant. (Id.) In support of her position, Alleyne submits a sworn affidavit, which describes the events surrounding the search as follows:
3. On October 14, 2010, at approximately 8:00 a.m., I returned to my home after taking my daughter Ashlyn to school. Law enforcement agents were waiting for me outside my home. One of the agents pulled me by the arm and insisted on entering my home without my permission or consent. Once inside, the agents started searching for evidence. During their search the agents read through my records and documents before labeling some of them and then placing them in a plastic bag. When I protested to the agents that they did not have a warrant to search my home and take the documents, one of them told me that they didn't need a search warrant because the documents were in "plain view."
4. Several hours after taking the documents from my home without a search warrant, the agents returned to my home with a search warrant and took other items including additional records and documents. (Alleyne Affidavit (Docket Entry # 179-3 Exh. B) at ¶¶ 3-4.)
The Government opposes this motion, arguing (1) that Alleyne consented to the agents accompanying her into her home after her arrest, and (2) that once the agents were inside the residence, the incriminating evidence that formed the basis for their warrant application was in plain view.*fn5 (Gov't Opp. Alleyne (Docket Entry # 186).) On September 13, 2011, the court held a suppression hearing, at which two agents involved in Alleyne's arrest and in the search of her home testified. (See Suppression Hearing Tr.) The court found the testimony of both agents forthright and credible, and credits their testimony as set forth below.
At the suppression hearing, the court heard the testimony of Agents Jerry DiNapoli and Andrew Goldstein of Homeland Security Investigations ("HSI"). (See Suppression Hearing Tr.) Agent DiNapoli provided testimony relevant to the issue of Alleyne's consent to enter her home. Agent Goldstein provided testimony about to evidence that was recovered from within Alleyne's residence, which formed the basis for the Government's subsequent search warrant application.
Agent DiNapoli was the team leader involved Alleyne's arrest. (Id. at 7 (stating that six to eight agents were assigned to the arrest).) He arrived at 848 Linden Boulevard at approximately 7:00 a.m. on the day of the arrest. (Id. at 8-9.) He watched Alleyne leave her home (apparently to take her daughter to school) and return at approximately 10:00 a.m. (Id. at 9, 11.) When Alleyne returned, she backed her car into her driveway and Agent DiNapoli approached the vehicle. (Id. 11-13.) Alleyne did not respond initially, and remained in the vehicle while she spoke on her cell phone. (Id. at 14.) When Agent DiNaopli knocked on the driver's side window and informed Alleyne that he had a warrant for her arrest, she exited the vehicle. (Id. at 14-15.) Standing outside, a few feet from the car, Agent DiNapoli told Alleyne that she was under arrest and explained what would happen to her next. (Id.at 15-17.) He did not handcuff Alleyne or physically touch her at any time. (Id. at 15, 18.) Agent DiNapoli was the only agent to speak to Alleyne. (Id.) He testified that her demeanor was calm throughout their conversation. (Id.)
Agent DiNapoli described his interaction with Alleyne, prior to the agents' entrance into her residence, as follows:
A: I told her that she would be taken to our office where we would ask her a number of questions, like her full name, social security number, all of the information we need for our paperwork, and that later that day she would then be taken to the Eastern District of New York for her arraignment.
Q: What was her response?
A: She was just like okay.
Q: What if anything happened next?
A: I noticed that she was wearing a lot of jewelry and that she had a medium size to large woman's handbag. I asked her if she would want to come with us now and take all of that stuff with her, or if she would rather go in the house and drop the stuff off and leave it there.
Q: Now, why did you give her this option of-
A: I didn't want to be responsible for all of the stuff that she had. She had a lot of gold-what appeared to me to be gold. I didn't know what was inside the bag. It seemed like a lot of extra stuff we didn't need to deal with that day. So it would be better off to let the person drop it off, if possible.
A: So we weren't accountable. We wouldn't lose anything. If it doesn't have any evidentiary value, we don't need it.
Q: And prior arrests you presented this option before. Why is that?
A: For the same reasons. I didn't want to be accountable for other people's property.
Q: [When] presented with the option of leaving her things or going right then, what was her response?
A: She said-she asked me if you want to go in my house, is what she said to me, and I told her, I said, that's totally up to you. You can go with me now or go upstairs with you, meaning the other agents involved in the arrest, because you are under arrest and we have to escort you.
Q: And what was her response after you said that to her?
A: She thought about it for a couple of seconds and she agreed.
Q: Now, that option that you just stated, how many times did you present this option to her?
Q: Did she ever tell you you can't enter her house?
Q: And what happened after this was explained to her?
A: Well, she thought about it and she agreed to go up. She said she wanted to put her stuff away and ...