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United States v. Kloszewski

United States District Court, S.D. New York

May 11, 2017

GUSTAV KLOSZEWSKI, et al., Defendants.


          ALVIN K. HELLERSTEIN United States District Judge.

         Defendant Gustav Kloszewski moves to dismiss the indictment for the Government's failure to preserve and produce exculpatory evidence contained on the cell phone of Kloszewski's co-conspirator ("CC-3"). Kloszewski argues that the Government violated his due process rights, as expressed in Brady v. Maryland, 373 U.S. 83 (1963). The crux of Kloszewski's motion is that videos contained on CC-3's cell phone will disprove a fact alleged in Kloszewski's criminal complaint: that CC-3 obtained firearms that she later sold in New York directly from Kloszewski. The missing videos, Kloszewski contends, will show that CC-3 obtained the firearms not from Kloszewski, but by burglarizing the house of a man named Justin. Kloszewski's motion is denied.


         The indictment charges Kloszewski with four counts: Firearms Trafficking Conspiracy in violation of 18 U.S.C. § 371; Firearms Trafficking in violation of 18 U.S.C. § 922(a)(1)(A); Interstate Transportation of Firearms in violation of 18 U.S.C. § 922(a)(5); and Hobbs Act Robbery Conspiracy in violation of 18 U.S.C. § 1951. The evidence at issue in this motion relates to the first three counts, the firearm charges. The indictment alleges that Kloszewski and co-conspirators transported firearms from Florida for sale in New York. The criminal complaint, based upon the sworn statement of Special Agent Scott Cunningham of the Drug Enforcement Agency ("DEA"), contains a more specific allegation. The complaint alleges that CC-3, one of Kloszewski's co-conspirators, told Agent Cunningham that she obtained the firearms "on consignment" from Kloszewski, and that CC-3 typically deposited the proceeds into Kloszewski's bank account after each sale. According to the complaint, CC-3 told this to Agent Cunningham shortly after the DEA arrested her on February 24, 2016, after she was caught selling firearms in New York in a controlled purchase set up by the DEA.

         Following CC-3's arrest, the DEA seized her phone. March 2, 2017 Hr'g Tr. ("Tr.") 9-10. CC-3 began cooperating almost immediately. While in custody, and at the DEA's direction, CC-3 called Kloszewski from her cell phone, which the DEA had returned to her for the sole purpose of making this call, and informed Kloszewski that she had sold the firearms and had the proceeds. Tr. 13-14. Agent Cunningham testified that CC-3 told him that she obtained the guns by robbing a house in Miami, Florida, and that Kloszewski had participated in the robbery. Tr. 12. On cross-examination, Agent Cunningham was asked if CC-3 had told him that Kloszewski had given her the guns on consignment (as Agent Cunningham stated in the complaint); he answered that he could not recall. Tr. 64-65, 67.

         Agent Cunningham testified that he did not search CC-3's phone while she was in custody, explaining that he did not have a search warrant. He stated also that the DEA had developed a working relationship with CC-3, and that asking for her consent to search her phone might disrupt their rapport. Agent Cunningham stated that the DEA believed it was more important to continue working with CC-3 to further the investigation, than to risk alienating her, Tr. 17-18.

         On February 25, 2016, the Government decided not to prosecute CC-3 and to obtain her continuing cooperation to further their investigation. The DEA released CC-3 from custody, and returned her phone to her so that she could respond to calls from Kloszewski or other conspirators. Tr. 16. The next day, February 26, 2016, CC-3 and Agent Cunningham traveled to Miami, Florida, and CC-3 called Kloszewski to arrange a meeting with him. That evening, CC-3 met with Kloszewski and others. Tr. 20. Prior to the meeting, the DEA provided CC-3 with $1, 000 in pre-recorded buy money, which CC-3 was to present to Kloszewski as the proceeds from the recent firearms sale in New York. Tr. 20.

         At the DEA's direction, CC-3 recorded the conversation using a recording device provided by the DEA. A transcript of that recording has been provided to Kloszewski, and a portion of the transcript was introduced into evidence at an evidentiary hearing held on March 2, 2017. The transcript indicates that during the February 26 meeting, CC-3 showed Kloszewski photographs on her phone of the firearms that had recently been sold in New York. Kloszewski asked CC-3 questions about the firearms, and appeared to have had familiarity with them. In addition to the photographs, CC-3 also showed Kloszewski a video, which apparently depicted CC-3 and other individuals stealing the firearms from the house of a man named Justin. GX-14 at 38-39. Following this meeting, the DEA arrested Kloszewski, and found on his person the $1, 000 in pre-recorded buy money that the DEA had given to CC-3 prior to the meeting. Tr. 22. The DEA permitted CC-3 to retain her phone.

         Agent Cunningham testified that he listened to the recording of the meeting sometime after February 26, and delivered a copy of the recording to the U.S. Attorney's Office around March 1, 2016. Tr. 82. Around this time, Agent Cunningham also learned from CC-3 that Justin had informed CC-3, via text messages to her phone, that he knew that CC-3 and her friends had burglarized his house. Agent Cunningham stated that he viewed these text messages by looking at CC-3's phone over her shoulder. Tr. 82-84. During cross examination, Agent Cunningham was unable to explain the contradiction between these text messages and the sworn complaint, which stated that CC-3 had told him that Kloszewski had given her the guns.

         Agent Cunningham testified that CC-3's phone was not searched or taken into custody after the February 26 meeting because of CC-3's continuing cooperation with the investigation, and her ongoing use of the phone to make recorded calls to individuals under investigation. Tr. 24-26, 38. The Government never searched CC-3's phone, even during a period in mid-March of 2016 when CC-3 stopped cooperating with the Government. CC-3 resumed her cooperation about a month later following a proffer session, and continued to use her cell phone to make recorded phone calls in that capacity. Tr. 32-34.

         On May 10, 2016, an associate of CC-3 ("CC-4") advised Agent Cunningham that CC-3 had lost her phone while traveling in Colombia, South America. Tr. 35; GX-12. During a proffer session, CC-3 gave the Government a different account: she had lost her phone at Miami International Airport after being interdicted by Customs and Border Patrol ("CBP"). Tr. 106. On May 26, 2016, counsel for Kloszewski requested the contents of CC-3's phone. Tr. 39. After receiving that request, the Government undertook various efforts to obtain the cell phone's contents. It obtained a search warrant to search CC-3's iCloud account; it communicated with CBP to see if CBP was in possession of the phone; it communicated with CC-3's attorney; and it attempted to communicate with Justin, the man whose house was apparently burglarized in the videos at issue. Tr. 39-40.


         Shortly after Kloszewski was indicted, the Government produced a transcript of the recording of CC-3's February 26 meeting with Kloszewski. On September 20, 2016, Kloszewski demanded production of the contents of the cell phone, including the photographs and videos referenced in the transcript of the February 26 meet, as well as the cell phone's call log and location history. The Government responded on October 28, 2016 that the "video, audio and cellphone requested are not within the Government's possession, custody, or control." On November 18, 2016, Kloszewski filed the instant motion.

         On January 7, 2017, just prior to oral argument, the Government advised the Court that CC-3 was no longer a "cooperating witness and is not expected to be a cooperating witness at the trial." Following oral argument, the Government advised the Court that it had obtained from CC-3 the photographs and one of the videos showing the theft of Justin's home, and had produced them to Kloszewski. Nevertheless, I ordered an evidentiary hearing to evaluate the Government's good faith in the circumstances and to gain a better understanding of the significance of the ...

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