United States District Court, E.D. New York
MEMORANDUM AND ORDER
KIYO A. MATSUMOTO, District Judge.
Presently before the court are defendant Imran Ismile Badoolah's ("defendant") motions to (i) dismiss the indictment, (ii) suppress evidence seized pursuant to a search warrant at his residence on December 17, 2012, (iii) obtain a bill of particulars, (iv) compel pretrial disclosure of the government's witness list and Jencks Act material, (v) compel immediate identification of government informants and unindicted coconspirators, and (vi) compel immediate disclosure of other discovery pursuant to Giglio v. United States, 405 U.S. 150 (1972) and Brady v. Maryland, 373 U.S. 83 (1963). For the reasons set forth below, defendant's motions are denied in their entirety.
On December 14, 2012, a grand jury indicted defendant on one count of conspiracy to commit bank and wire fraud, in violation of 18 U.S.C. § 1349, and four counts of bank fraud, in violation of 18 U.S.C. § 1344. (ECF No. 1, Indictment dated 12/14/12.) According to the indictment, defendant recruited individuals who had good credit scores, but lacked the income and assets needed to obtain mortgage loans, to serve as straw buyers of properties in exchange for fees. ( Id. at 5-6.) Defendant also allegedly prepared and oversaw the preparation of mortgage loan applications that contained numerous material misrepresentations to make the straw buyers appear creditworthy, such as inflated incomes and bank account balances, and also falsely stated that the straw borrowers would reside at the properties even though the borrowers had no intention of doing so. ( Id. at 6.) Many of the straw borrowers failed to make mortgage payments to the lenders, and the mortgage loans for the properties subsequently defaulted. ( Id. )
Following defendant's indictment, Magistrate Judge Vera M. Scanlon signed an arrest warrant authorizing the arrest of defendant. (ECF No. 33, Mem. in Opp. dated 9/20/13 ("Opp."), Ex. A ("Arrest Warrant").) This arrest warrant is dated "12/14/2002, " but, because defendant was not indicted until December 14, 2012, the "2002" in the arrest warrant appears to be, and the court deems it as a typographical error, given that Magistrate Judge Scanlon was not appointed a Magistrate Judge until 2012. ( See id. )
On December 17, 2012, government agents executed the arrest warrant at defendant's residence, the first floor of 117-47 133rd Street in South Ozone Park, New York. (ECF No. 32, Mem. of Law in Supp. of [Def.'s] Pretrial Motion ("Mot.") dated 9/3/13, Ex. C, Aff. in Supp. of Search Warrant ("Trebelhorn Aff.") at 7.) In his affidavit in support of a search warrant on December 17, 2012, FBI Special Agent Bryan Trebelhorn attested that a co-conspirator who pleaded guilty and cooperated with the government ("CW") told agents that he/she had signed a letter to a lender which contained false information at defendant's residence, and that a second co-conspirator who is cooperating with authorities ("CS") had witnessed defendant and others preparing fraudulent documents used in furtherance of the mortgage fraud scheme at defendant's residence. ( Id. at 6-7.) Agent Trebelhorn also attested that government agents had independently corroborated statements provided by the CS and CW. ( Id. )
Agent Trebelhorn also averred in his search warrant affidavit that, while executing the arrest warrant, agents had conducted a protective sweep of defendant's residence and observed a pile of documents in plain view on top of a desk in the front room of the residence that featured the names of known front companies created by defendant and listed on mortgage applications submitted to lenders as employers of straw borrowers even though they did not in fact employ the straw borrowers, including one computer company that employed a straw borrower identified as John Doe. ( Id. at 8.) Agent Trebelhorn further attested that, in the middle room, agents saw in plain view a folder bearing the name of straw borrower John Doe, a folder labeled with the address of a property purchased by John Doe on behalf of defendant, a folder with the address of a property purchased by another straw borrower identified as Jane Doe on behalf of defendant, and a paper with the address and contact information for the computer company that purportedly employed John Doe. ( Id. at 5, 8-9.) Agent Trebelhorn averred that, based on his involvement in and experience with fraud investigations, there was probable cause to believe that evidence related to the criminal activity by the defendant was located at his premises. ( Id. at 9.)
Finally, according to the government's submissions, the agents repeatedly knocked on the front door of defendant's residence for approximately fifteen minutes while identifying themselves and observed, through the windows of the residence, the defendant running through various rooms and between the first and second floors. (Opp. at 2.) Additionally, the government has stated that agents saw defendant repeatedly assume a crouching position and, as a result, assumed he was hiding or destroying physical evidence. ( Id. ) The agents also observed an unknown person leave the residence through a door in the basement. ( Id. ) After the defendant opened the door and allowed the government agents to enter, the agents handcuffed the defendant and asked for other occupants to gather on the first floor. ( Id. ) The government states that the individuals who came down to the first floor gave inconsistent answers regarding the total number of people in the residence and they found a toy gun that was an authentic replica of a real firearm. ( Id. ) The government asserts that the agents did not search the premises until receiving judicial authorization for a search warrant from Magistrate Judge Robert M. Levy, which was supported by Agent Trebelhorn's affidavit including information obtained from the agents' execution of the arrest warrant. ( Id. at 3; see also Mot. Ex. B. dated 12/17/12 ("Search Warrant").)
In an affidavit in support of his motion, defendant alleges that the agents slammed him to the floor, forcibly grabbed members of his family, opened file cabinets, and repeatedly typed at a computer. (ECF No. 32-1, Aff. in Supp. of Mot. dated 9/3/13 ("Badoolah Aff."), at 1-2.) Defendant also claims, inter alia, that an agent pointed a gun at him and that the computer company that Agent Trebelhorn averred was a front company was not in fact a front company. ( Id. at 5, 7.) In an affidavit, defendant's daughter states, inter alia, that she saw agents pointing a gun at her father while he was face down on the floor and that she saw agent walk into the back room where her father was being held and ask him about the contents of the folders. (ECF No. 38, Reply in Supp. of Mot. to Suppress ("Reply") Ex. 4, Aff. of Aleema Imran Ishmile dated 10/18/13, ¶¶ 5, 8.) Defendant's first wife submitted an affidavit claiming that she saw agents in the living room on the third floor pulling open file cabinets. (Reply Ex. 4, Aff. of Jameran Shaw dated 10/18/13, ¶ 4.).
On December 17, 2012, defendant was arraigned on the Indictment and entered a plea of not guilty on all counts. (Minute Entry dated 12/17/12.) Defense counsel filed the instant motions on September 3, 2013, and an evidentiary hearing on the motion to suppress was held on March 3, 2014, March 26, 2014, and July 9, 2014.
I. Motion to Dismiss the Indictment for Pre-Indictment Delay
The first issue for the court is whether the indictment should be dismissed because of the government's delay in bringing charges against defendant. Defendant argues that, although he was indicted within the relevant statute of limitations period, he has been unable to locate a key witness as a result of the delay, rendering him unable to defend himself. (Mot. at 4-6.) The government responds that defendant has not demonstrated that he was actually prejudiced by any delay and that the government is not required to file charges as soon as probable cause exists. (Opp. at 4-7.)
a. Legal Standard
A defendant seeking dismissal of an indictment based on pre-indictment delay must show that (1) the defendant suffered actual and substantial prejudice as a result of the delay; and (2) the government intentionally caused the delay in order to obtain a "tactical advantage" over the defendant. United States v. Marion, 404 U.S. 307, 324 (1971); see also United States v. Cornielle, 171 F.3d 748, 752 (2d Cir. 1999). The "heavy burden" of establishing both elements rests with the defendant. Cornielle, 171 F.3d at 752.
The defendant has failed to meet his burden of establishing impermissible pre-indictment delay. First, defendant has not demonstrated that he was actually prejudiced by any delay. See United States v. Birney, 686 F.2d 102, 105-106 (2d Cir. 1982) (proof of actual prejudice "must be definite and not speculative"). The only basis that defendant offers for finding that he was actually prejudiced by the delay is the absence of one potential witness, Neda Imasuen, the lawyer who arranged the transactions underlying the substantive bank fraud charges in the indictment. ( See Opp. at 5.)
"Faded memories or unavailable witnesses are inherent in any delay, even if justifiable. To merit dismissal a defendant must demonstrate a substantial, actual prejudice to his ability to defend himself." United States v. Delacruz, 970 F.Supp.2d 199, 202 (S.D.N.Y. 2013) (citing United States v. Long, 697 F.Supp. 651, 657 (S.D.N.Y. 1988)). Defendant fails to make such a showing, having not demonstrated (1) his efforts to locate the witness and that the witness would have been available had defendant been charged sooner, or (2) that the potential witness would offer any testimony helpful to defendant.
Defendant can only speculate on what evidence was lost as a result of the delay. As the government's opposition motion highlights, it is hardly certain that Mr. Imasuen, an unindicted co-conspirator who executed allegedly fraudulent transactions, would give testimony favorable to defendant. See United States v. Dinero Express, Inc., No. 99-cr-975, 2000 WL 254012, at *4 (S.D.N.Y. Mar. 6, 2000) (no actual prejudice found where defendants did not explain how the witness was rendered unavailable by the pre-indictment delay, how the anticipated testimony would have been beneficial, or whether the witness would have cooperated with defense counsel in the first instance).
Defendant's contention that the actual prejudice he suffered is the "missed opportunity" to explore whether a witness could offer testimony favorable to his defense is unsupported by the caselaw in this circuit. See Long, 697 F.Supp. at 657 (holding that perceived prejudice arising out of a five-year pre-indictment delay was speculative and failed to justify dismissal where defendant did not know what a deceased witness's testimony would have been); see also U.S. v. Guerra, No. 10-cr-147, 2012 WL 1899861, at *5 (E.D.N.Y. May 24, 2012). In the same vein, the defense's reliance on United States v. Santiago, 987 F.Supp.2d 465, 488 (S.D.N.Y. 2013) is misplaced, as the missing witness in that case had made statements exonerating the defendant (and contradicting the government's theory of the case) on two prior occasions. Here, defendant has not shown what testimony Mr. Imasuen would offer, and the fact that defendant is "barred from exploring whether the attorney who oversaw all four transactions in the indictment has any exculpatory testimony" (Reply at 2.) does not demonstrate that defendant was actually prejudiced by any delay.
Moreover, even if defendant had suffered actual prejudice from the pre-indictment delay, he has not shown that the government delayed filing the indictment in order to obtain a tactical advantage. Defendant asserts that an improper purpose can be inferred because the government had "no conceivably justifiable reason why they would wait over five years" to indict defendant. (Mot. at 6.) Despite arguing that "[t]here is only one inference to draw from this delay absent an explanation otherwise, " defendant has not presented any evidence demonstrating that the government intended to, or did in fact, gain any tactical advantage through a deliberate delay.
The government asserts that the timing of the indictment was dictated by the government's investigation into defendant, as it continued to gather evidence until it was "satisfied that [it would] be able promptly to establish guilt beyond a reasonable doubt." (Opp. at 7, citing United States v. Lovasco, 431 U.S. 783, 796 (1977).) As the Supreme Court held in Lovasco, pre-indictment delay for the purpose of investigating a case is permissible, "even if [the] defense might have been somewhat prejudiced by the lapse of time." Lovasco, 431 U.S. at 796. Accordingly, because defendant has not satisfied his burden of showing both actual prejudice and intentional strategic delay by the government, his motion to dismiss the indictment on the ground of pre-indictment delay is denied.
II. Motion to Suppress Evidence Seized from Defendant's Residence
The second issue for the court is whether evidence seized from defendant's residence on December 17, 2012, the day of his arrest, should be suppressed. Defendant argues that suppression is warranted because (1) there was no valid arrest warrant to justify the agents' entry into the residence ( see Mot. at 6-8), (2) the search warrant contains misrepresentations and false statements of material fact ( see Mot. at 9-12), and (3) the agents executing the arrest warrant were not lawfully positioned to make the observations described in Agent Trebelhorn's affidavit, and the evidence observed was not in plain view ( see Mot. at 12-14). The government contends that (1) the typographical date error on the arrest warrant does not affect the validity of either the arrest or search warrants ( see Opp. at 7-8), (2) the defendant has not satisfied his burden of demonstrating that statements in the affidavit were false or misleading ( see Opp. at 11-14), and (3) the agents executing the arrest were entitled to conduct the protective sweep of the residence, and any documents in plain view were legally viewed in the course of the sweep ( see Opp. at 8-11). The court held an evidentiary hearing on the protective sweep on March 3, 2014, at which FBI Special Agent Jonathan Scott testified for the government and Lalita Monica Singh, the defendant's ex-wife, and Fawaz Badoolah, the defendant's 20-year-old son, testified for the defense. At the continued hearing on March 26, 2014, Ma Khalaque, a tenant living in the defendant's basement, and Aleema Ishmile, the defendant's 19-year-old daughter, testified on behalf of the defense, the government continued its crossexamination of Ms. Singh, and Agent Trebelhorn testified for the government. The hearing was again continued until July 9, 2014, to allow for the appointment of counsel for Ms. Singh before continuing her cross-examination and to hold a Curcio hearing regarding defense counsel's continued representation of defendant. On July 9, 2014, the court concluded the hearing after the cross-examinations of Ms. Singh and Agent Trebelhorn were completed. Ms. Singh's testimony was subsequently stricken from the record after she asserted her Fifth Amendment privilege against self-incrimination during her cross-examination. The parties filed post-hearing submissions with the court ( see ECF No. 53, Post-Hr'g Mem. of Law in Opp. dated 7/22/14 ("Gov't Post-Hr'g Mem."); Def.'s Post-Hr'g Mem.) and responses to their adversary's submission ( see ECF No. 55, Resp. to Defendant's Post-Hr'g Submission dated 8/5/14 ("Gov't Post-Hr'g Reply"); ECF No. 56, Reply in Supp. of Mot. to Suppress dated 8/11/14 ("Def.'s Post-Hr'g Reply")).
a. Factual Findings
During the evidentiary hearing, the witnesses for the defense gave sworn testimony that contradicted the version of defendant's arrest given by Agents Scott and Trebelhorn.
i. Testimony from the Government's Witnesses
According to the credible testimony of Agents Scott and Trebelhorn, defendant was the subject of an FBI investigation into a multimillion dollar mortgage fraud scheme. (T1 at 5; T2 at 82.) On December 17, 2012, Agents Scott and Trebelhorn, along with approximately eight other FBI agents, executed a warrant for defendant's arrest at his residence in Queens, New York. (T1 at 6, 10; T2 at 82-83.) The residence is a three-story single-family house with an adjacent driveway. (T1 at 6; T2 at 82.) Upon the agents' arrival at the house, shortly before 6 a.m., they observed the second-floor lights on and the exit of an unknown man from the basement of the house. (T1 at 9; see T2 at 83-84.) Agents approached the front door and knocked loudly while identifying themselves as FBI agents. (T1 at 11, 14; T2 at 84.) While looking through the window on the front door, the agents observed defendant alternately running between various rooms in the house, running up and down the stairs, and assuming a crouching position. (T1 at 13-14; T2 at 85.) As a result of defendant's response to the agents' announcing their presence, Agents Scott and Trebelhorn were concerned that he could be hiding or destroying evidence or concealing a weapon or trap for the agents. (T1 at 13-14; T2 at 85.)
Defendant opened the front door after approximately 5 to 15 minutes, at which time agents led him out of the foyer into an adjoining space at the front of the first floor. (T1 at 15; T2 at 86.) After moving defendant out of the path of the front door, the agents placed him on the floor to handcuff him and take him into custody. (T1 at 16-17.)
After the defendant was placed into custody, agents began a sweep of the first floor, including the bedrooms, and commanded the family members present in the house to come to the first floor. (T1 at 18, 20; T2 at 86-88.) The other occupants descended from the upper floor one at a time and provided the agents with inconsistent information regarding the number of people present in the house, prompting the agents to proceed to conduct a safety sweep of the other floors of the house. (T1 at 20-21; T2 at 88.) While the family members were congregated on the first floor and agents conducted their sweep of the first floor, the agents observed documentary evidence with the names of straw buyers and front companies known to the agents to be involved in the alleged mortgage fraud scheme. (T1 at 23-30; T2 at 90.) Agent Scott proceeded to take photographs of items that the agents observed in plain view. (T1 at 23-24, 32.) The agents secured the perimeter of the house in advance of their application for a search warrant. (T1 at 31; T2 at 83.)
In advance of transporting defendant for his arraignment, agents asked defendant for an identification document. (T1 at 75-76.) Defendant pointed the agents to a jacket in or around a closet where they could find a form of identification, and the agents retrieved his New York State identification. (T1 at 75-76.) Agent Trebelhorn did not recall whether a driver's license had been obtained, but recalled having one of defendant's passports at the time he was transported. (T3 at 59.) While transporting defendant, Agent Trebelhorn emailed Agent Scott, who remained at defendant's residence, to ask whether the agents at the residence had found one of defendant's passports. ( See T1 at 75-76; T2 at 108-109.) Agent Trebelhorn explained that he learned about a second passport during the transport and asked defendant for its location; upon learning the location from defendant, Agent Trebelhorn relayed the information to Agent Scott. (T2 at 108-109.) The agents at the house never located a passport. (T1 at 76-77.)
A search warrant was granted later the same day, at which time the agents began their search of the premises and took photographs to memorialize the setting before and after the search. (T1 at 32, 35-36.) The agents credibly testified that they did not conduct a search of the ...