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United States v. O'Brien

United States District Court, E.D. New York

May 31, 2017

UNITED STATES OF AMERICA
v.
MICHAEL O'BRIEN, et al., Defendant.

          MEMORANDUM AND ORDER

          ROSLYNN R. MAUSKOPF, United States District Judge.

         Following a jury trial, defendant Michael O'Brien, proceeding pro se, was found guilty of conspiracy to import methylone and anabolic steroids, importation of methylone and anabolic steroids, conspiracy to possess with intent to distribute methylone and anabolic steroids, possession with intent to distribute methylone and anabolic steroids, and maintaining drug-involved premises. At the close of the government's case-in-chief, O'Brien moved for a judgment of acquittal under Federal Rule of Criminal Procedure (“Rule”) 29(a). The Court reserved decision pursuant to Rule 29(b). In his post-trial motion, O'Brien renewed his motion under Rule 29 and moved for a new trial pursuant to Rule 33.[1] The government opposed the motion. For the reasons that follow, the Court denies O'Brien's motions in their entirety.

         BACKGROUND

         I. Pre-Trial Proceedings

         On October 10, 2013, O'Brien was arrested at his apartment, 40-22 College Point Boulevard Apt. 3PHR, Queens, New York (the “College Point apartment”) pursuant to an arrest warrant for jumping bail after pleading guilty in state court to criminal possession of a firearm. O'Brien waived his Miranda rights, made statements to the police, and consented to a search of the College Point apartment and a second apartment, 132-35 41st Road, Apt. 5E, Queens, New York (the “41st Road apartment”).

         At the 41st Road apartment, agents found, among other things, twelve kilograms of methylone and twenty-one kilograms of a variety of anabolic steroids. O'Brien was subsequently indicted and charged in a five-count indictment with conspiracy to import methylone and anabolic steroids, importation of methylone and anabolic steroids, conspiracy to possess with intent to distribute methylone and anabolic steroids, possession with intent to distribute methylone and anabolic steroids, and maintaining drug-involved premises.

         On April 29, 2014, O'Brien moved to suppress all post-arrest statements made to law enforcement officers and all physical evidence obtained on October 10, 2013. (Mot. Suppress (Doc. No. 41); Mem. Supp. Mot. Suppress (Doc. No. 46).) O'Brien argued that he did not voluntarily waive his Miranda rights or provide consent to search his apartment because he was suffering from Gamma-Hydroxybutrate (“GHB”) withdrawal. (See Mem. Supp. at 1-2.)[2]

         On August 13 and August 22, 2014, the Court held a suppression hearing where O'Brien and special agents from the Department of Homeland Security (“DHS”), Homeland Security Investigations (“HSI”), and the Drug Enforcement Administration (“DEA”) testified. On March 20, 2015, the Court denied O'Brien's suppression motion.

         II. The Evidence at Trial

         A jury trial commenced on July 20, 2015. The government's evidence at trial included the testimony of thirteen witnesses. O'Brien then presented his defense case, calling three witnesses. The evidence established, relevant to the instant motion, the following:[3]

         A. Package Seizures and the Arrest of Kimberly Ruud

         On September 20, 2013, Customs and Border Protection (“CBP”) officers seized three packages at the John F. Kennedy International Airport (“JFK”) mail branch facility. (Transcript of Trial Proceedings (“Tr.”) at 33, 38, 45.) The first package was addressed to Kimberly Ruud at 1204 Avenue U in Brooklyn, New York, and it contained approximately one kilogram of methylone. (Tr. at 33-35; Govt.'s Ex. (“GX”) 1, 1A, 39.) The second package was addressed to Charlene Ruud at 41 Schermerhorn Street in Brooklyn, New York, and it contained approximately one kilogram of methylone. (Tr. at 38-40, 447; GX 3, 3A, 39.) The third package was addressed to Kim Chow at 512A 77th Street in Brooklyn, New York, and it contained approximately one kilogram of methylone. (Tr. at 48-49, 447-48; GX 2, 2A, 39.) Each of these addresses was for a different mailbox store. (GX 1A, 2A, 3A.) After seizing the three packages, CBP notified HSI agents, who then took possession of the packages. (Tr. at 45- 46.)

         On September 23, 2013, HSI agents went to the three mailbox store locations listed on the seized packages in anticipation of conducting a controlled delivery. (Tr. at 46-47.) Special Agent Deron James testified that, on September 23, 2013, he was the team leader at the Shipping Store located at 512A 77th Street in Brooklyn. (Tr. at 47-49.) After he arrived at the Shipping Store, Agent James was informed that there was another package at the store, which was addressed to Kimberly Ruud at the same mailbox number as the package containing methylone. (Tr. at 51.) That day, Ruud arrived at the Shipping Store, picked up both packages, and began to drive away. (Tr. at 54-55.) Ruud subsequently was arrested, and she provided consent for the agents to search her car. (Tr. at 55-57.) Upon searching the car, agents found the two packages that Ruud had just picked up in the front passenger's seat, as well as four more packages in the trunk. (Tr. at 57-58.) The packages seized from Ruud's car contained a total of 2, 988.6 grams of methylone and 2, 985.6 grams of various types of anabolic steroids. (Tr. at 447-50; GX 39.) All six packages were sent from China. (GX 2A, 5A, 6A, 7A, 8A, 9A.) That same day, Special Agent Sean Gabay of HSI recovered another package addressed to Kimberly Ruud from a different mailbox store in Brooklyn, which contained another 1, 004 grams of anabolic steroids. (Tr. at 372-74, 448-49; GX 4, 4A, 39.)

         Special Agent Joshua Schottenfeld of HSI testified that he conducted a search of one of Ruud's cellphones, (GX 400), and discovered a series of communications on September 23, 2013 with defendant Michael O'Brien, who was listed in the phone as “Big.” (Tr. at 204-10; GX 401C.)[4] In the text messages, O'Brien provided Ruud with instructions identifying the mailboxes from which she should pick up packages, as well as which mailbox to avoid. (Tr. at 208-11; GX 401C.) Specifically, at 3:15 A.M., Ruud received a message from O'Brien, which read, “138, 131, 2025, 106, 180.” As Agent Schottenfeld testified, those numbers were listed in a ledger found in O'Brien's College Point apartment and correspond to mailbox numbers where packages containing drugs were sent. (Tr. at 208.) Ruud responded, “K.” (Tr. at 211; GX 401C.) At 11:10 A.M., Ruud received a message from O'Brien, which said, “Don't go to 131 today.” (Tr. at 208-09; GX 401C.) Ruud responded, “Thanks, too late. LOL.” (Tr. at 211; GX 401C.) O'Brien then wrote, “Okay, that's fine. As long as no problems.” (Tr. at 209; GX 401C.) Ruud responded, “No, no worries.” (Tr. at 211; GX 401C.) O'Brien then wrote, “180 was there?” followed by another message, which said, “How many did you get done so far?” (Tr. at 209; GX 401C.) Moreover, a search of one of O'Brien's cellphones, (GX 211), revealed that on the day of Ruud's arrest, at approximately 3:20 P.M., O'Brien texted “Ant” saying, “Need to talk, big problems.” (Tr. at 182; GX 405F.) Agent Schottenfeld later testified that “Ant” was Anthony Deservio, an individual who worked for O'Brien and was also referred to as the “bald guy.” (See Tr. at 200-02.) Ant responded, “You want me to meet you home, ” and O'Brien responded, “yes please, sorry to have you hanging around, just big problems.” (Tr. at 182; GX 405F.)

         B. The October 10, 2013 Arrest

         Special Agent Edward Alahverdian of the DEA testified that on October 10, 2013, he, along with agents from HSI, members of the U.S. Marshals Fugitive Task Force, and officers from the Suffolk County Police Department (“SCPD”), went to the College Point apartment to arrest O'Brien on an outstanding Suffolk County bench warrant. (Tr. at 97-98.) Agent Alahverdian testified that while O'Brien was being arrested by local authorities on their warrant, agents from DEA and HSI accompanied them as they had information that O'Brien was involved in narcotics trafficking. (Id.) Between six and twelve agents and officers then entered the building through the side entrance and took the freight elevator to O'Brien's floor. (Tr. at 101- 02.) Agent Alahverdian testified that, at approximately 11:00 a.m., the agents and officers entered the apartment, conducted a protective sweep, and placed O'Brien under arrest. (Tr. at 102-05, 142.)

         After O'Brien was arrested, Agent Alahverdian testified that he identified himself to O'Brien, and that O'Brien expressed interest in speaking with him, stating that he “could help [Agent Alahverdian] out.” (Tr. at 105-06.) Agent Alahverdian and Special Agent Vincent Marino proceeded to read O'Brien his Miranda rights. (Tr. at 107-08.) Agent Alahverdian testified that O'Brien stated that he understood his rights and still wished to speak to the agents. (Tr. at 109-10.) Agent Alahverdian further testified that O'Brien gave the officers oral permission to search the College Point apartment. (Tr. at 110.)

         Agent Alahverdian testified that while the other agents and officers conducted the search, O'Brien told him and Agent Marino that he was addicted to GHB and requested to take a dose. (Tr. at 111-12, 679.) The agents refused O'Brien's request, and O'Brien then requested that he be allowed to take a Valium in order to delay the onset of any withdrawal symptoms. (Tr. at 112-13, 665-66.) Agent Marino gave O'Brien a Valium pill, believing that O'Brien had a prescription for the pills. (Tr. at 112-13, 665-66, 679.)

         O'Brien was then taken into Agent Marino's vehicle in order to transport him to the First Precinct in Babylon, Suffolk County. (Tr. at 113-14.) Agent Marino drove the vehicle, Agent Alahverdian rode in the passenger seat, and O'Brien and a SCPD officer were in the back of the car. (Tr. at 115.) Agent Alahverdian testified that, during the car ride, O'Brien was talkative, offering information about how he ran his drug business. (Tr. at 116.) Specifically, Agent Alahverdian testified that O'Brien informed him that he ordered methylone from China over the internet, using his black Acer computer. (Tr. at 116-18.) O'Brien stated that two of the websites he used to order drugs were Alibaba and Silk Road. (Tr. at 118.) Agent Alahverdian further testified that O'Brien stated that he had the drugs shipped to various mailboxes and UPS stores and would monitor the tracking information to determine when the packages of drugs had arrived. (Tr. at 117.) Agent Alahverdian testified that O'Brien stated that he would send people, including an individual named Michael Wagner, to pick up the packages and would pay these individuals approximately $200 for each package that they picked up. (Tr. at 117.) Agent Alahverdian testified that according to O'Brien, he would purchase the methylone for $1, 900 per kilogram and sell it for $30, 000 per kilogram. (Tr. at 126.)

         After they arrived at the precinct, the agents allowed O'Brien to smoke a cigarette outside before proceeding to the squad room. Agents Alahverdian and Marino discussed O'Brien's stash house, the 41st Road apartment. (Tr. at 119-20.) Agent Alahverdian testified that he had information that this location was used as a stash house by O'Brien for narcotics trafficking. (Tr. at 119-20.) After being asked about the stash house, O'Brien stated that he would give the agents consent to search the location. (Tr. at 119-20.) The agents asked O'Brien about the specific address of the location, to which he “shook his head and said yes” to confirm that it was his stash house. (Tr. at 120.) Agent Alahverdian further testified that O'Brien informed the agents that they would find approximately ten kilograms of methylone at that location, as well as unopened packages of chemicals, steroids, and various paraphernalia he used in his business operations. (Tr. at 120-21.) Agent Marino then provided O'Brien with a consent-to-search form, (GX 121), in which O'Brien provided written consent in front of Agents Alahverdian and Marino to search the College Point apartment, the 41st Road apartment, and his computers and phones. (Tr. at 121, 125; GX 121.) Agent Alahverdian testified that he then told O'Brien that he wanted to continue working with him on this investigation, but would need to turn him over to the Suffolk County officers to process his arrest on the local warrant. (Tr. at 125.) Following the interview of O'Brien, officers from SCPD transported O'Brien to Suffolk County Superior Court, where he was arraigned on the bench warrant. (Tr. at 660.)

         C. The October 29, 2013 Arrest

         Special Agent James Flynn of HSI testified that after O'Brien was released from custody from Suffolk County, Agent Flynn and other HSI agents were put on surveillance duty in the Bronx, New York to try to locate O'Brien and arrest him on the underlying federal charges. (Tr. at 618-19.) On October 29, 2013, HSI agents located and arrested O'Brien outside an apartment in the Bronx. (Tr. at 618-21.) At the time, O'Brien had on him and in his vehicle approximately $4, 852, two watches valued at more than $60, 000, six cell phones, and a vial labeled “Genzyme.” (Tr. at 621-29; GX 500-A, 501-02.) In the presence of Agent Marino, Agent Alahverdian advised O'Brien of his Miranda rights, which he waived. (Tr. at 132-36; GX 122.) O'Brien then provided written consent for the agents to search two of his vehicles and two suitcases. (Tr. at 136-39; GX 123.)

         D. The October 10, 2013 Searches

         Agents conducted searches of the College Point apartment and the 41st Road apartment pursuant to the signed consent-to-search forms. (Tr. at 157, 162.)

         a. The College Point Apartment

         According to Agent Schottenfeld, agents found in the apartment 18 cell phones, 12 laptops, currency counting machines, a printer used to create IDs, a ledger, vials of liquid steroids labeled “Genzyme, ” 250 sheets of “Genzyme” labels, fraudulent identification materials, and approximately $10, 356 in cash. (Tr. at 164-66.) He further testified that many of the “Genzyme” vials were labeled with the names of other steroids, such as Testosterone. (Tr. at 168, 189.)

         Agent Schottenfeld testified that he conducted a search of two of the eighteen cell phones that were found at the College Point apartment. (Tr. at 170; GX 210, 211.) A search of the cell phone found in O'Brien's bedroom showed that O'Brien's contacts included, among others, Mike Wagner, Chao J.J., JJ realtor, Landlady Lina, and Danielle Girace.[5] (Tr. at 174-75; GX 210, 404D.) A search of the cell phone found in O'Brien's living room showed text messages sent by O'Brien, in which he identified himself as Jeremy Soto, the “big guy, ” and “big.” (Tr. at 179-80; GX 211, 405F.) Text messages sent the day of Ruud's arrest stated that O'Brien had “big problems.” (Tr. at 182; GX 405F.) Several other text messages sent by O'Brien stated that the situation was getting worse and that he was “shut down.” (Tr. at 183-84.) Specifically, on September 25, 2013, O'Brien sent a message, which stated, “bald guy got picked up, ” and Agent Schottenfeld testified that the phrase “picked up” commonly refers to someone being arrested. (Tr. at 183; GX 405F.) On September 28, 2013, O'Brien sent another text message, which stated, “The situation that was erupting while you were visiting got worse.” (Tr. at 184; GX 405F.) O'Brien received a response, “Damn, complete shut down?” to which he responded, “for the most part” and “250 in losses.” (Tr. at 184-85; GX 405F.) On October 2, 2013, O'Brien received a text message, which stated, “Brother, any news?” and O'Brien responded, “Yes, I'm shut down.” (Tr. at 185; GX 405F.)

         Agent Schottenfeld also testified about the ledger and an envelope recovered from the apartment. (Tr. at 199-200, 212-20.) The ledger contained lists of anabolic steroids, lists of locations where Kimberly Ruud picked up drugs, and the phone number of the phone Ruud carried at the time of her arrest. (Tr. at 199-202; GX 201.) In the envelope were applications and receipts for multiple mailboxes in Brooklyn that matched the locations from which, according to the ledger, Ruud had picked up packages of methylone and steroids. (Tr. at 212- 19; GX 202A-E.) The agents also found twenty-seven airway bills for packages mailed from China, addressed to various individuals and companies, including to “Mike Wagner” and other individuals with the last name “Wagner.” (Tr. at 220-25; GX 209A.)

         Among the twelve laptops seized, one matched the description of the black Acer computer described by O'Brien earlier that day. (GX 228; Tr. at 281.) Special Agent David Bauer of HSI conducted a forensic analysis of the computer. (Tr. at 280-81.) Agent Bauer testified that he recovered text files from the computer that contained discussions of orders for various types of steroids, wire transfer instructions, mailbox addresses, tracking instructions, lists of drugs, and lists of his arrested workers. (Tr. at 282-97; GX 407-09, 411-14, 416-21.) The web browser history showed searches for “seller methylone” and searches for the USPS tracking information for the packages seized from Ruud's car. (Tr. at 311-12, 322-25; GX 428, 434-35.) Additionally, the computer contained emails related to the Alibaba website, which O'Brien had informed Agent Alahverdian he used to purchase methylone from China. (Tr. at 319-20; GX 429.)

         Along with the ID printer, agents found blank identification cards and numerous false identification documents. (Tr. at 191-93; GX 207A-B.) Specifically, agents recovered (1) a social security card, a Connecticut Department of Motor Vehicles form, a birth certificate, and a police identification card with O'Brien's photo in the names “Jeremy Paul Soto” and “Jeremy Soto”; (2) a social security card and a birth certificate in the names “Steve Andre Manolas” and “Steve A. Monolas”; (3) a birth certificate in the name “George Manolas”; (4) a social security card and a birth certificate in the name “David Lee Walker”; and (5) a police identification card with O'Brien's photo in the name “Stephen Conte.” (Tr. at 193-95; GX203A-B, 204A-D, 205A-C, 206A-B.)

         b. The 41st Road Apartment

         Special Agents John Moloney and Sean Gabay of HSI testified about their search of the 41st Road apartment pursuant to O'Brien's signed consent-to-search form. (Tr. at 334-415.) According to Agent Moloney, the landlord initially denied the agents entry into the apartment. (Tr. at 337-38.) In order to gain entry, agents faxed a copy of the consent-to-search form to the landlord. (Tr. at 338.) Once inside, agents found numerous liquid and powdered substances, drug packaging materials, drug paraphernalia, pills, and a large pill press machine. (Tr. at 339.) Agent Moloney testified that the large pill press machine, which is used to turn powder substances into pills, weighed approximately 500 or 600 pounds. (Tr. at 344-45; GX 301K.) Agents recovered a number of pills, which tested positive for anabolic steroids, (Tr. at 459; GX37), as well as a large box filled with hundreds of empty pill bottles, (Tr. at 347-48, 387-88; GX 301W-X, 305.) Agents also found vials with “Genzyme” labels, identical to the vials at the College Point apartment. (Tr. at 342, 379; GX 301G-H.) In the kitchen cabinets, agents found small scales and beakers of yellow liquid. (Tr. at 341-42, 377, GX 301B-H, 304A-C.) In the bedroom, agents found a heater that could be used for processing drugs. (Tr. at 389; GX 306A- B.) In the closet, agents found eight packages of methylone. (Tr. at 352-58; GX 301P.)

         During the search, agents also recovered packages and discarded packing materials, which were sent from China and addressed to various individuals, including “Jeremy Soto” and individuals with the last name “Wagner.” (Tr. at 359-60, 380, 391-405; GX 17A, 19A, 309A- D, 301KK, 311G, 313G, 314A-B.) Agent Gabay testified that agents found Ritz Carleton Reward cards in the name of Jeremy Soto and two photographs of O'Brien. (Tr. at 401-03, 415; GX 313A-D.) In one of the photographs, O'Brien is with Danielle Girace, his former girlfriend who operates a tanning salon. (Tr. at 401-03, 415; GX 313B; see GX 627, 629.)

         The government called senior forensic chemist Christopher Benintendo of the DEA to testify about the substances found at the apartment. (Tr. at 436.) Benintendo testified that a number of the pills recovered from the 41st Road apartment tested positive for anabolic steroids. (Tr. at 458.) According to Benintendo, agents recovered approximately 12, 134 grams of methylone and 21, 927 grams of anabolic steroids from the apartment. (Tr. at 451-58; GX 39.) According to methylone expert Special Agent Michael Fernandez of HSI and anabolic steroid expert Dr. Harrison Pope, a total of approximately seventeen kilograms of methylone and twenty-one kilograms of anabolic steroids were found in the apartments and on Kimberly Ruud at her arrest. (Tr. at 472-73, 581.) Agent Fernandez testified that seventeen kilograms of methylone was equivalent to approximately 170, 000 doses, valued at $1.7 million ...


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