The opinion of the court was delivered by: Hon. Hugh B. Scott
Pending Motions and Procedural Background
Before the Court are various motions by defendant seeking discovery and other relief. First, under the original version of the Indictment (see Docket No. 1), defendant filed his two omnibus motions for various discovery relief, filing of a Bill of Particulars (Docket No. 18; see Docket No. 26 (second motion)), and suppression of evidence and statements (Docket No. 26). In particular, defendant sought the filing of a Bill of Particulars; discovery; production of informant information; Jencks Act materials; notice of Government's intention to use anything seized pursuant to a search warrant; impeachment information against Government witnesses; Brady materials; witnesses' statements; preservation of rough notes (Docket No. 18). He also sought disclosure of the identify and circumstances of a certain confidential informant, "CS-7," in the search warrant application under which he furnished information for that application (Docket No. 26); particularization of co-conspirators and their statements (id.); and to controvert the search warrant (id.). In support of these motions, defendant submitted his attorney's supplemental affidavit (id.); his affidavits (Docket Nos. 28, 29); his attorney's affidavit, with exhibit (Docket No. 32), outlining efforts to obtain information regarding border crossing records. In response, the Government submits its responding papers (Docket Nos. 21, 27).
An evidentiary hearing was held on February 7, 2011 (Docket No. 35 (transcript); see Docket Nos. 30, 31), and following that hearing, defendant moved for production of statements made by witnesses in that hearing, pursuant to Federal Rule of Criminal Procedure 26.2 (Docket No. 33).
These omnibus motions initially were deemed submitted on March 14, 2011, following post-hearing submissions by the parties (Docket Nos. 36 (Government), 37-38*fn1 (defendant)). Upon defendant's arraignment on the Superseding Indictment, on May 13, 2011 (Docket No. 40), supplementation of these omnibus motions was due by August 1, 2011, and the Government's response was due by August 3, 2011, and the motions were further argued on August 8, 2011 (Docket No. 41). This Court deemed these motions carried over to the Superseding Indictment.
Defendant then moved under the Superseding Indictment for discovery and other relief previously sought as well as unredacted search warrant information; statements from Jennifer Bannach and Jason McInerney; disclosure of global positioning system ("GPS") surveillance information; list of witnesses; law enforcement documents; and Grand Jury information (Docket No. 45). He sought hearings as to his eligibility for 18 U.S.C. § 3553(f) (for a sentence notwithstanding any statutory minimum); and regarding the probable cause for issuance of the search warrant. Defendant supports this motion with his attorney's affidavit with exhibit (a decision by Judge Nicholas Garaufis in Matter of Historical Cell-Site Information, 10MC897, E.D.N.Y., Aug. 23, 2011) (Docket No. 46). The Government responded (Docket No. 47).
This motion was argued on September 16, 2011, and the Court initially reserved decision (text minute entry, Sept. 16, 2011).
While this motion was pending, the United States Supreme Court considered United States v. Jones, 565 U.S. ___, 132 S.Ct. 945 (2012), which involved the constitutionality of warrantless use of a GPS devise on a vehicle and whether that use constitutes a search under the Fourth Amendment. The Court later held that the Government's attachment and use of a GPS device to a vehicle constitutes a search under the Fourth Amendment, Jones, supra, 565 U.S. ___, 132 S.Ct. 945 (see Docket No. 51 (defense attorney affirmation, Jan. 23, 2012, announcing Jones decision)).
Defense motions then turned to the use of a GPS devise on defendant's car. The Government was ordered to produce GPS discovery sought by defendant by March 8, 2012 (Docket No. 53; see Docket No. 52, minute entry). Defendant then filed his second motion to compel production of regarding the GPS device (Docket No. 54). The Government filed a responding affidavit from counsel, with attached affidavit from Joseph Stroh, a special agent with Homeland Security Investigations of the Department of Homeland Security, regarding the GPS device in this case (Docket No. 55).
During a status conference held on March 28, 2012, defendant sought more discovery surrounding the GPS device and the Government stated that it could respond; a further status conference was set for April 12, 2012 (text minute entry, Mar. 28, 2012; see also Docket No. 56, Order to Continue). On April 12, 2012, the Government sent a letter to defense counsel and the Court (Docket No. 59, Ex. C, letter of Assistant U.S. Attorney Mary Baumgarten to Alan Hoffman, Esq., Apr. 10, 2012) reporting that the computer hardware which ran the GPS tracking software was no longer in the Government's inventory and the data was erased when the equipment no longer supported the software for that computer (id., with attachment; see also Docket No. 55, Gov't Atty. Aff., Ex. 1, Aff. of Joseph Stroh ("Stroh Aff.") ¶ 6). Later that day, the parties reported the status of production regarding the GPS device revealing that some documents were unavailable (text minute entry, Apr. 12, 2012). Defendant then made a third motion seeking discovery of the GPS tracker usage, as well as to dismiss the Indictment; production of Grand Jury minutes; production of the redacted search warrant application; and to vacate the search warrant (Docket No. 58). The Government responded to this motion (Docket No. 59), and argument of that motion (and other pending motions) was held on August 3, 2012 (text minute entry, Aug. 3, 2012; see Docket No. 60). Defendant then filed a supplemental Memorandum of Law for suppression of evidence arising from the GPS (Docket No. 61), to which the Government responded (Docket Nos. 62, 63). Further argument of these discovery motions was held on October 9, 2012 (text minute entry, Oct. 9, 2012; cf. text minute entry Sept. 25, 2012), and all motions then pending were deemed submitted as of October 9, 2012 (text minute entry, Oct. 9, 2012).
Separately, this Court will consider defendant's suppression motion, his motions to controvert the search warrant, and to dismiss the Superseding Indictment in a Report & Recommendation.
Defendant initially was charged with attempted conspiracy to manufacture and import marijuana and importation of marijuana, in violation of 21 U.S.C. §§ 952(a), 960(a)(1), (b)(2)(G), (b)(4), 963, and 18 U.S.C. § 2 (Docket No. 1, Indict.), between June 2004 and April 6, 2006. Defendant allegedly conspired to import 100 kilograms or more of marijuana from Canada (id.). The second count alleges that on April 6, 2006, defendant illegally imported marijuana from Canada into the United States (id.).
On April 28, 2011, the Government filed a Superseding Indictment (Docket No. 40), reiterating the two counts in the initial Indictment (id., Counts 1, 2) and charging defendant with conspiracy to possess with the intent to distribute and to distribute marijuana from around September 2008 to February 2010 (id., Count 3); possession with the intent to distribute marijuana on or about February 24, 2010 (id., Count 4); and maintenance of a drug-involved premises in Niagara Falls, New York, from around April 29, 2009, through February 24, 2010 (id., Count 5).
On December 5, 2007, law enforcement officers installed the GPS device on defendant's car, a Cadillac STS, while parked in a public parking lot in Niagara Falls, New York (Docket No. 55, Gov't Atty. Aff., Ex. 1, Stroh Aff. ¶ 2). Information from the GPS device was accessed remotely by law enforcement via a computer to assist in surveillance of the vehicle, for example, when the visual surveillance of that car was lost (id., Stroh Aff. ¶ 3). Defendant's Cadillac was under visual surveillance prior to the GPS device being installed (see id. ¶ 4).
The GPS device was removed between February 6 and 13, 2008, when a person advised law enforcement that they would be driving the Cadillac (id. ¶ 7).
The Government contends that no information generated by the GPS device was used to obtain the search warrant (Docket No. 59, Gov't Atty. Aff. ¶ 8 & n.2; cf. Docket No. 58, Def. Atty. Aff. ¶ 11).
Defendant seeks discovery surrounding the use of the GPS, relying upon a District of Massachusetts case, United States v. Rose, Criminal No. 11-10062-NMG, 2012 U.S. Dist. LEXIS 68095 (D. Mass. May 16, 2012) (Boal, Mag. J.) (Docket No 58, Def. Atty. Aff. ¶ 4, Ex. A).
The Government argued on October 9, 2012, that it does not intend to use information gleaned from the GPS at trial.
The Supreme Court in Jones held that the Government's attachment of a GPS device on a vehicle and its use to monitor the vehicle's movements constitutes a search under the Fourth Amendment requiring a warrant, 565 U.S. ___, 132 S.Ct. 945. Defendant in the case at bar seeks disclosure of the tracking information from the GPS devise implanted on his vehicle (Docket Nos. 45, 54, 59). The Government disclaims any use of evidence ...