USA v. Myrick

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
V.
YUSEF E. MALIK MYRICK,
Defendant.
s,p.,,ES DISTR
~~0 	FILED
MAY -1 2025
~4/?v - 	., Cl~ ..,~,
,t lOEWfNGll1<• 	~ ,..\'
IN DI ST RIC1 O
1:22-CR-00175 - JLS-MJR
REPORT, RECOMMENDATION
and ORDER
This case was referred by the presiding judge, the Honorable John L. Sinatra, Jr.,
to this Court, pursuant to 28 U.S.C. §636(b)(1), to handle all pre-trial matters and to make
a recommendation as to all suppression motions. Before the Court are pretrial motions of
defendant Yusef E. Malik Myrick, including motions to suppress and various discovery
and disclosure demands. (Dkt. No. 63). For the following reasons, it is recommended that
defendant's motions to suppress be denied. The Court's decisions as to defendant's
discovery demands are also set forth in detail below.
BACKGROUND AND PROCEDURAL HISTORY
On November 16, 2022, an Indictment was filed charging defendant with the
following offenses: (1) nine counts of production of child pornography, in violation of Title
18, 	United 	States 	Code, 	Sections 2251 (a) 	and 	2251 (e); 	(2) 	transportation 	of child
pornography, in violation of Title 18, United States Code, Sections 2252A(a)(1) and
2252A(b)(1 ); (3) fourteen counts of distribution of child pornography, in violation of Title
18 , United States Code, Sections 2252A(a)(2)(A) and 2252A(b)(1 ); (4) six counts of
receipt of child pornography, 	in violation of Title 	18 , United States Code, 	Sections
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 1 of 34

2252A(a)(2)(A) and 2252A(b)(1 ); (5) ten counts of cyberstalking, in violation of Title 18,
United States Code, Section 2261A(2)(B); (6) obstruction of justice, in violation of Title
18, United States Code, Sections 1505 and 2; (7) witness tampering, in violation of Title
18, United States Code, Section 1512(b)(3); and (8) possession of child pornography, in
violation of Title 18, United States Code, Section 2252A(a)(5)(B) and 2252A(b)(2).1 (Dkt.
No. 1). The Indictment also includes forfeiture allegations. (Id.).
On March 8, 2024, defendant filed an omnibus motion seeking suppression of
evidence and making various discovery and disclosure demands. (Dkt. No. 63). The
Government 	responded 	in 	opposition 	to 	defendant's 	motions. 	(Dkt. 	Nos. 	65-67).
Defendant filed a reply. (Dkt. No. 71 ). The Court heard oral argument on the pretrial
motions on April 24, 2024. At that time, the Court requested supplemental briefing on
certain 	issues 	and 	scheduled 	an 	evidentiary 	hearing. 	The 	Government 	filed 	a
supplemental memorandum, (Dkt. Nos. 78-81 ), to which defendant filed a response (Dkt.
No. 91).
An evidentiary hearing was held on May 21, 2024. The Government and defendant
filed post-hearing briefs. (Dkt. Nos. 123; 124). The Government and defendant also filed
reply briefs. (Dkt. Nos. 125; 126). Post-hearing oral argument was held on April 2, 2025,
at which time the Court considered the matter submitted for decision.
FINDINGS OF FACT
During an evidentiary hearing held on May 21, 2024, the Court heard testimony
from Homeland Security Investigations ("HSI") Special Agent Michael Ball, HSI Special
1 Myrick's co-defendant, Lily A. Brandow, is also charged in the Indictment. (Dkt. No. 1). Pursuant to a
plea agreement, Brandow pied guilty to the charges before Judge Sinatra on August 14, 2024 . (Dkt. No .
101 ).
2
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 2 of 34

Agent Jerrod Kremblas, HSI Special Agent Bryan Jacobson , Chautauqua County Sheriff's
Office Sergeant Adam McAdoo, HSI Special Agent Nicholas Melchiorre, and Chautauqua
County Sheriff's Office Investigator Jacob Stahley. The testimony related to events that
occurred on December 21, 2021 following the execution of a search warrant and arrest
of defendant at his residence in Falconer, New York.
On December 21, 2021 , HSI and local law enforcement agencies prepared to
execute search and arrest warrants at defendant's residence. (Tr. 114, 163-64). 2 At the
time, law enforcement possessed information that defendant had violent past conduct
directed toward females, had access to dangerous weapons, and was potentially affiliated
with a gang . (Tr. 9, 116-17).
At approximately 6:00 a.m ., law enforcement began towing a vehicle from the front
of the residence, at which time defendant Myrick and co-defendant Brandow came onto
the porch . (Tr. 11 , 16-17). Despite commands to exit the residence, defendant and
Brandow went back into the residence. (Tr. 11, 37). After a short period , Brandow and
her father came out of the residence , followed by defendant. (Tr. 38-40). Defendant was
instructed to place his hands on his head and slowly walk backwards towards the officers.
(Tr. 11 ). Agent Ball was the first person to encounter the defendant, and while attempting
to handcuff the defendant, defendant became resistant, and a minimal amount of force
was used to bring defendant to the ground and handcuff him. (Tr. 12, 40). Defendant was
then walked to a parked Suburban vehicle , which was the initial collection point for the
individuals in the residence . (Tr. 39-40). After a short period of time, defendant and the
2 Citations to "Tr. " refer to the transcript of the evidentiary hearing. (0kt. No . 93) .
3
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 3 of 34

three other occupants of the residence were placed in a Sprinter van vehicle to sit while
the scene was cleared. (Tr. 46). The Sprinter van was heated and warm . (Tr. 66, 168).
Agent Jacobson and Investigator Stahley then drove defendant and the other
individuals in the Sprinter van to the Ellicott Police Department, which was only a few
minutes away. (Tr. 70, 167-68). Once in the parking lot, at approximately 7:16 a.m.,
defendant was placed into the patrol vehicle of Investigator McAdoo, who activated his
body camera and waited with defendant until the interview team was ready. (Tr. 81-82,
170; Ex. 5; Ex . 9) . During the approximately 40 minutes that defendant was in Investigator
McAdoo's car, defendant repeatedly asked Investigator McAdoo questions about the
case and made some admissions about his conduct. (Tr. 86-87 ; Ex. 5). Investigator
McAdoo responded to defendant's questions by telling defendant that he would soon be
talking with an HSI agent who would be able to answer the questions. (Tr. 87; Ex . 5; Ex.
9) .
Investigator McAdoo did not Mirandize defendant and when asked about Miranda
rights by the defendant, Investigator McAdoo specifically told the defendant that he was
not being questioned. (Tr. 87, 98; Ex. 5 at 07:24:32; Ex. 9) . McAdoo stated: "we're just
chilling out right now." (Id.). At no time did Investigator McAdoo ask defendant any case-
related 	questions. 	(Tr. 	87-88 ; 	Ex. 	5) . 	Investigator 	McAdoo 	described 	defendant's
demeanor in the car as "cooperative and fairly calm." (Tr. 89 - 94, 111 ; Ex. 5). There was
no ind ication to Investigator McAdoo that defendant was under the influence of any drug
or alcohol. (Id.).
At approximately 7:55 	a.m., 	Investigator Stahley walked to the car and told
Investigator McAdoo that they were ready to go. (Tr. 101, 171-172; Ex . 5; Ex. 6) . At 8: 11
4
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 4 of 34

a.m., defendant was walked into an interview room in the Ellicott Police Department. (Id.).
The room contained video recording equipment which recorded the events. (Id.). Once in
the room, Investigator Stahley said to defendant, "I know you feel that the world is coming
down on you right now, but I need you to tell, like, your side of the story." (Tr. 17 4; Ex. 6).
At 8:12 a.m., Agent Melchiorre entered the interview room and introduced himself. (Tr.
126-27; Ex . 6). After a brief discussion about handcuffs, defendant maneuvered his cuffed
hands from behind his back to the front with the officers' consent. (Id.).
At 8:13 a.m., 	prior to Miranda rights being provided, Agent Melchiorre asked
defendant, "so, do you know why we're here today," to which defendant initially responded
"no" but then said, "I'm assuming it has something to do with [Victim 7], considering you're
here [gesturing towards Investigator Stahley]." 3 (Tr. 128-29). Agent Melchiorre testified
that he asked the question not with intent to violate defendant's Miranda rights, but instead
to see if defendant knew about the search warrant and to ascertain whether the defendant
was agitated, upset, or calm. (Tr. 128-29, 141-42).
During the next minute, Agent Melchiorre told defendant that the investigation was
"looking 	at different things that have been going on 	online" and that co-defendant
Brandow appeared to be involved in the investigation, which prompted defendant to ask
if Brandow was being arrested. (Tr. 133; Ex. 6; Ex. 10). At that point, Agent Melchiorre
told defendant that because he was in handcuffs and at a police station, he had to read
defendant his Miranda rights before questioning proceeded. (Tr. 133; Ex. 6; Ex. 10).
3 The defendant had previously mentioned the name of Victim 7 when he was sitting in the car with
Investigator McAdoo. Specifically, after asking about what agencies were involved in the investigation, the
defendant stated, "I swear to God, what the fuck did [Victim 7] get me roped into yo." (Govt. Ex. 5 at
7:21 :48 a.m.).
5
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 5 of 34

Agent Melchiorre removed a waiver form from a folder and read to defendant the standard
Miranda rights that were printed on the form. (Tr. 136-38; Ex. 3; Ex. 6; Ex. 10).
When Agent Melchiorre was done reading defendant his rights, defendant stated
that he could not afford an attorney and asked , "if I wanted the attorney present during
this, how would that work?" (Ex. 6; Ex. 10). At 8:15:32 a.m ., Agent Melchiorre responded ,
"we would pause that and wait until you had an attorney appointed to you, and you would
have to make that determination with him or her ." (Ex. 6; Ex. 10). In response, defendant
made an unintelligible comment, to which Agent Melchiorre stated , "you can't do that right
now." (Id.). Agent Melchiorre then asked defendant again if he understood the rights that
were read to him. (Id.) . Defendant unequivocally answered "yes." (Id.). Agent Melchiorre
then asked, "knowing what I read to you, do you wish to talk to us today," to which
defendant responded, "might as well." (Id.).
Thereafter, the defendant initialed each of his six rights on the Miranda waiver form
that Agent Melchiorre read from , and then printed , signed , and dated the form waiving his
rights. 	(Tr. 	136-38; 	Ex. 	3; 	Ex. 6). 	The interview of defendant then 	proceeded 	until
approximately 10:50 a.m., during which defendant made numerous admissions regarding
his sexual exploitation of several victims in this case. (Ex. 6).
The interview of defendant was calm and respectful. (Tr. 142, 176-77, 191-92; Ex.
6) . Agent 	Melchiorre 	and 	Investigator 	Stahley 	did 	not 	raise 	their 	voices 	towards
defendant, did not display or brandish their weapons, nor did they make any threats or
promises to defendant. (Id. ). At no time during the interview did defendant ask for an
attorney or ask to make a phone call. (Tr. 142-43, 177; Ex. 6) . Defendant was cooperative,
6
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 6 of 34

appeared to understand what was happening, and did not appear to be under the
influence of any drug or alcohol. (Tr. 139, 146-47 , 176-78; Ex. 6) .
It is noted that after listening to and observing the demeanor of Agent Ball, Agent
Kremblas, 	Agent 	Jacobson , Sergeant 	McAdoo, 	Agent 	Melchiorre, 	and 	Investigator
Stahley, the Court finds them to be wholly credible witnesses.
CONCLUSION OF LAW
Motion to Suppress Statements
Defendant 	moves 	to 	suppress 	incriminating 	statements 	he 	made 	to 	law
enforcement on December 21, 2021 following his arrest. (Dkt. No. 63, ,m 48-56). On that
date, defendant made statements in the patrol vehicle of Chautauqua County Sheriff's
Office Sergeant Adam McAdoo and at the Town of Ellicott Police Station during an
interview with HSI Special Agent Nicholas Melchiorre and Chautauqua County Sheriff's
Office Investigator Jacob Stahley. Defendant brings this motion on the grounds that his
Miranda rights were violated and that his statements to law enforcement were involuntary.
(Id. ).
a.) Statements in Sergeant McAdoo's Vehicle
First, defendant argues that he was unlawfully interrogated by law enforcement
while under arrest in Sergeant McAdoo's vehicle prior to receiving a Miranda warning.
The Government maintains that no interrogation of defendant occurred in the vehicle and
that any statements defendant made were spontaneous admissions.
A person questioned by law enforcement officers after being "taken into custody
or otherwise deprived of his freedom of action in any significant way" must first "be warned
that he has a right to remain silent, that any statement he does make may be used as
7
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 7 of 34

evidence against him, and that he has a right to the presence of an attorney, either
retained or appointed. " Stansbury v. Cal., 511 U.S. 318, 322 (1994) (quoting Miranda v.
Arizona, 384 U.S. 436 , 444 (1966)). "On a motion to suppress in a criminal trial , the
defendant bears the burden of demonstrating [ .. .] that he was subject to custodial
interrogation ." United States v. Wilson, 100 F. Supp. 3d 268, 277 (E .D.N.Y. 2015) . "Once
a basis has been established, 'the prosecution has the burden of establishing by a
preponderance of the evidence that a suspect waived his Miranda rights, and that his
confession is truly the product of free choice." Id., at 278 (quoting 	United States v.
Anderson, 929 F.2d 96, 99 (2d Cir. 1991 )) .
Custodial interrogation, which triggers Miranda warnings, is "questioning initiated
by law enforcement officers after a person has been taken into custody or otherwise
deprived of his freedom of action in any significant way. " Miranda , 384 U.S. at 444. "[T]he
term 'interrogation' under Miranda refers not only to express questioning , but also to any
words or actions on the part of the police (other than those normally attending to arrest
and custody) that the police should know are reasonably likely to elicit an incriminating
response." Acosta v. Artuz, 575 F.3d 177, 189 (2d Cir. 2009) (quoting Rhode Island v.
Innis, 446 U.S. 291 , 301 (1980)). Where statements are spontaneous -- that is, where
they are not the result of questioning or its functional equivalent -- Miranda warnings are
not necessary and the statements are not protected . United States v. Noble, 07-CR-284,
2008 U.S. Dist. LEXIS 37184, at * 18 (S.D .N.Y. May 7, 2008) (citing Miranda, 384 U.S. at
478; Rhode Island v. Innis, 446 U.S. 291 , 300-01 (1980)) . "[V]olunteered information or
spontaneous statements, even if made when an individual is in custody, do not implicate
Miranda." United States v. Carr, 63 F. Supp. 3d 226 , 237 (E.D .N.Y. 2014) .
8
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 8 of 34

Here, it is undisputed that defendant was under arrest, and thus in custody, for the
purposes of Miranda when in McAdoo's vehicle. It is further undisputed that defendant
was not advised of his Miranda rights prior to making incriminating statements to Sergeant
McAdoo. 	However, 	the 	evidence 	adduced 	at the 	hearing 	reflects 	that defendant's
statements 	were 	spontaneous 	admissions 	which 	were 	not 	made 	in 	response 	to
interrogation.
Following defendant's arrest on December 21, 2024, defendant was taken to the
Ellicott Police Department. Once they arrived in the parking lot, defendant was placed
into Sergeant McAdoo's police vehicle at approximately 7:16 a.m. McAdoo waited with
defendant for approximately forty minutes, until the interview team was ready. In addition
to the relevant hearing testimony, the Government has submitted into evidence police
body camera footage which captured the interactions in the vehicle.
During this time, defendant repeatedly asked Sergeant McAdoo questions about
the case and made some admissions about his conduct. McAdoo repeatedly responded
to defendant's questions by telling him that he would be talking to an HSI agent soon .
Several times, 	McAdoo advised 	defendant that he did 	not know the details of the
investigation. Although defendant and McAdoo engaged in limited casual conversation,
the 	exchange was 	dominated 	by defendant's questions to 	McAdoo and 	McAdoo's
deferment of those questions.
Sergeant McAdoo did not Mirandize the defendant. At one point, defendant said to
McAdoo, " ... I wasn't Mirandized when I got arrested, what's up with that?" (Govt. Ex. 6;
Ex. 9, pg. 4). McAdoo responded, "You're not being questioned." (Id.) . McAdoo then
explained to defendant that he would 	be Mirandized before he was interviewed or
9
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 9 of 34

questioned. (Id.) . McAdoo stated, "we're just chilling out right now." (Id.). 	Defendant
pressed McAdoo for information about the investigation by asking, 'Tell me something,
does it have to do with photographs?" (Id., pg . 7) . McAdoo responded, "Listen man I can't
get into it. Alright? The guy with the backwards hat on is going to the one you'll be talking
to." (Id.).
Although Sergeant McAdoo did not ask defendant any case-related questions, at
one point McAdoo did ask defendant if he had an iPhone. Defendant argues that this
constituted interrogation because a number of electronic devices were seized by law
enforcement during the 	execution 	of the warrant, 	including 	an 	iPhone. 	During 	the
exchange in question defendant asked McAdoo "if any part of this investigation [was] held
in Houston." (Govt Ex. 6; Ex. 9, pg. 6). McAdoo stated, "not that I'm aware of." (Id.) .
Defendant then said, "that's weird man, for a long time my phone location kept saying
location Houston, Texas and I couldn't figure out why." (Id.). McAdoo responded, "I get
that on my phone sometimes too , it will say I'm in California. Do you have an iPhone?,"
to which Myrick answered yes. (Id.).
In full consideration of the context of the conversation, the Court concludes that
Sergeant McAdoo's question regarding defendant's iPhone was not designed or intended
to elicit an incriminating response from defendant. McAdoo testified that the question was
"just conversation" that was not pertinent to the case. (Tr. 88; 98-99). McAdoo further
testified that he did not relay any information about an iPhone to the other investigators.
(Id.). Indeed , it was already known to investigators that defendant possessed an iPhone,
as allegations regarding defendant's use of an iPhone were included in the December
2021 search warrant affidavit. (See Dkt. No . 67, pgs. 29-30).
10
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 10 of 34

Overall, the evidence supports a finding that defendant was not subjected to
custodial interrogation by Sergeant McAdoo. The statements made by defendant were
volunteered admissions, that were not the result of interrogation or coercive police tactics .
See Noble, 2008 U.S. Dist. LEXIS 37184, at *19-22 (declining to suppress statements
made while defendant was in transit to police station where "defendant started speaking,
first asking if he could have his shoes back" and then asking "can I please have my gun?").
As such, 	there was no 	Miranda violation 	and there is no basis to suppress these
statements.
b.) Statements in Interrogation Room
Following 	his arrest and 	temporary detention 	in 	Sergeant McAdoo's vehicle,
defendant was brought into an interview room inside the Ellicott Police Department. In
addition to the relevant hearing testimony, the Government submitted into evidence a
video recording of the entire interrogation. At approximately 8:15 a.m., defendant was
administered a Miranda warning by Agent Melchiorre and was thereafter interrogated by
Special Agent Melchiorre and Investigator Stahley.
Defendant asserts that he was interrogated by Agent Melchiorre and Investigator
Stahley prior to being read the Miranda warning. The evidence reflects that when Agent
Melchiorre first entered the interview room, he violated Miranda safeguards by asking
defendant "do you know why we are here today?" before administering a Miranda
warning. In response to Agent Melchiorre's question, defendant identified the name of an
alleged victim.
In addition, defendant claims that prior to the advice of rights Investigator Stahley
made an improper suggestion to defendant by stating, "I need you to tell me your side of
11
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 11 of 34

the story." In light of the initial unwarned statement and the allegedly improper suggestion
by Investigator Stahley, defendant seeks to have all statements he made during the
ensuing interrogation suppressed.
The 	Government concedes that defendant's statement in 	response to Agent
Melchiorre's question was custodial interrogation in violation of Miranda. (0kt. No. 123).
Accordingly, the Government represents that it will not use defendant's response to that
question 	during 	its case-in-chief at trial. 	Nonetheless, the 	Government argues that
defendant's subsequent statements to Agent Melchiorre and Investigator Stahley should
not be suppressed. The Court agrees.
In Oregan v. Elstad, 470 U.S. 298 (1985), the Supreme Court held that a pre-
Miranda statement to police in response to interrogation does not necessarily render a
subsequent post-Miranda confession inadmissible. There, the Supreme Court rejected
claims that a post-Miranda confession was the "tainted fruit" of a Miranda violation, and
that the psychological effect of having "let the cat out of the bag" would render subsequent
statements 	involuntary. 	See 	id. , at 	303-04, 	310-11. 	The 	Court 	held 	that, 	"absent
deliberately coercive or improper tactics in obtaining the initial statement, the mere fact
that a suspect has made an unwarned admission does not warrant a presumption of
compulsion" with respect to subsequent statement made after a Miranda warning. Id., at
314. 	Rather, 	"the 	admissibility 	of any 	subsequent 	statement 	should 	turn 	in 	these
circumstances solely on whether it [was] knowingly and voluntarily made." Id., at 309.
The Supreme Court revisited Elstad in Missouri v. Seibert, 542 U.S. 600 (2004), in
the 	context of a deliberate two-step 	interrogation 	technique that was 	designed 	to
undermine Miranda warnings. There, 	prior to administering 	a Miranda warning, 	the
12
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 12 of 34

officers conducted 	a 30- to 40-minute 	interrogation, 	which 	the 	Court described 	as
"systematic, exhaustive, and managed with psychological skill." Seibert, 542 U.S. at 604-
05, 616. After Seibert made unwarned and highly inculpatory statements, police read her
the Miranda warning 	and 	she 	repeated those statements. 	During the 	post-Miranda
questioning, officers repeatedly confronted Seibert with her earlier statements. The officer
who conducted the interrogation testified that he made a "conscious decision" to withhold
Miranda warnings based on a technique he had been taught. In a plurality decision, the
Court agreed that the statements were inadmissible and condemned the "question-first"
tactic. Id., at 613-14 .
When evaluating whether law enforcement engaged 	in a deliberate two-step
strategy for the purpose of circumventing Miranda , the government bears the burden of
disproving the deliberateness by a preponderance of the evidence . United States v.
Capers, 627 F.3d 470, 479- 80 (2d Cir. 2010). The Second Circuit has directed courts to
"review the totality of the objective and subjective evidence surrounding the interrogations
in order to determine deliberateness." Id.
Here, the Government has shown that the conduct of the officers was not abusive
or coercive. Nor is there any evidence that officers deliberately engaged in a two-step
interview to bypass Miranda requirements. Investigator Stahley testified that he made the
statement to defendant about telling his "side of the story" in an effort to calm defendant
down and treat him with dignity. Further, Agent Melchiorre's question about defendant's
knowledge of why he was there was generalized and introductory. In fact, the question
was nearly identical to the question asked in Elstad. 	See 470 U.S. at 301 	(asking
defendant if he was aware why officer and detective were there to talk with him). Law
13
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 13 of 34

enforcement did not engage in extensive questioning or deliberately utilize improper
tactics . To the contrary, 	moments after asking the initial question, Agent Melchior re
paused the conversation in order to read defendant a Miranda warning. He then asked
defendant if he understood those rights. Defendant stated his understanding of his rights
and signed a waiver of rights form. (Govt. Ex . 3; Ex. 6).
Defendant further argues that following administration of the Miranda warning, law
enforcement engaged in coercive conduct which was intended to mislead, trick, or cajole
defendant into a confession. See Colorado v. Connelly, 479 U.S. 157, 167 (1986) (holding
that coercive police activity is a necessary predicate to the finding that a confession is not
"voluntary" within the meaning of the Due Process Clause). The conduct defendant refers
to is the following exchange, which occurred between Agent Melchiorre and defendant
immediately after defendant was read a Miranda warning:
Melchiorre: 	"[ ... ] Do you understand what I just read to you?"
Myrick: 	"Yes, but I can 't afford an attorney, so if I wanted the attorney present
during this , how would that work?"
Melchiorre: 	"We would pause that and wait 'til you had an attorney appointed to
you . And you would have to make the determination with him or her. "
Myrick: 	"So I can 't do that [ .. . ]" [followed by a statement that is unintelligible
on the recording]
Melchiorre: 	"You can't do that right now, okay? So let me ask you . .. let me ask
you again. Do you understand what I just read?"
Myrick: 	"Yes."
Melchiorre: 	"Okay, so knowing what I read to you , do you wish to talk to us
today?"
Myrick: 	"Might as well."
14
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 14 of 34

(Govt. Ex. 6; 10, pgs. 4-5). 4
Despite defendant's assertion that he was coerced or misled by law enforcement,
the record before the Court demonstrates that defendant made a knowing and voluntary
waiver of his right to have an attorney present with him for questioning. A suspect must
"unambiguously" request a lawyer in order to successfully invoke his Fifth Amendment
right to counsel. Davis v. United States, 512 U.S. 452,459 (1992) ; United States v. Oehne,
698 F.3d 119, 123 (2d Cir. 2012) ("If an accused makes a statement concerning the right
to counsel that is ambiguous or equivocal or makes no statement, the police are not
required to end the interrogation, or ask questions to clarify whether the accused wants
to invoke his or her Miranda rights."). A suspect "must articulate his desire to have counsel
present sufficiently clearly that a reasonable police officer in the circumstances would
understand that statement to be a request for an attorney." Id. For example, in Davis, the
statement "[m]aybe I should talk to a lawyer," did not constitute a request for counsel. Id.,
at 462; see also United States v. Willson, 15-CR-142, 2017 U.S. Dist. LEXIS 43535, at
* 14 (W.D.N.Y. Feb. 27, 2017) (holding that the statement "[m]aybe I should get a lawyer.
Let's see what you got to say," was not a clear request for counsel).
Here, defendant's statement was not a clear or unambiguous request for counsel.
It appears to have been a question about the process of obtaining a lawyer, which was
answered by Agent Melchiorre. Moreover, moments later, defendant was asked if he
understood his rights and whether he wanted to talk to police, both of which he confirmed
4 It is noted that the Court questioned the Government about the unintelligible portion of this exchange
during the evidentiary hearing. Since that time, the Government represents that it attempted to enhance
the audio of the recording to obtain a more complete transcript. However, the Government was not able to
clarify the unintelligible portion and was unable to reach an agreement with defense counsel about the
content of the recording.
15
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 15 of 34

verbally. Defendant then signed a waiver of rights form which explicitly stated that he
understood his rights and was "willing to answer questions without a lawyer present" at
that time. From this, there can be no claim that defendant invoked his right to counsel.
Further, 	defendant 	has 	not 	provided 	any evidence 	of what 	he 	said 	in 	the
unintelligible portion of the recording. The affidavit defendant submitted to this Court
contains no allegations that he invoked his rights nor that he made a request for an
attorney at any time during the interrogation process. To the contrary, Agent Melchiorre
testified that he recollected defendant as having asked about the process of obtaining an
attorney 	and 	defendant then 	having 	made 	it clear that 	he 	wanted 	to 	talk to 	law
enforcement 	"right 	then 	and 	there." 	(Tr. 	135-36). Agent 	Melchiorre 	explained 	that
defendant "was determined in his mind what he wanted to do at this juncture of it." (Id.).
Indeed, this recollection is consistent with the recorded evidence of defendant's conduct
with Sergeant McAdoo and later in the interrogation room, wherein defendant asked
numerous questions and was insistent about getting answers from law enforcement.
c.) Defendant's Statements Were Voluntary
Lastly, defendant argues that the statements he made on this date were not made
following a knowing and voluntary waiver of his rights because of drug use, specifically
that he was "coming off a methamphetamine binge." (Dkt. Nos. 63, ,r 54-55; 124, pg. 8) .
Defendant submitted an affidavit stating that prior to his custodial interview, he "had been
using methamphetamine continuously for a period of at least five days." (Dkt. No. 72, ,r
7). Defendant submits that his emotional "ups and downs" and his bouncing leg, as seen
on the video evidence, are indicative of someone who has been using methamphetamine.
(Id.).
16
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 16 of 34

"Even absent the accused's invocation of [his Miranda rights], the accused's
statement during a custodial interrogation is inadmissible at trial unless the prosecution
can establish that the accused ' in fact knowingly and voluntarily waived [Miranda] rights'
when making the statement. " Berghuis v. Thompkins, 560 U.S. 370 , 382 (2010) (second
alteration in original) (quoting North Carolina v. Butler, 441 U.S. 369, 373 (1979)) . "To
prove a valid waiver, the government must show (1) that the relinquishment of the
defendant's rights was voluntary, and (2) that the defendant had a full awareness of the
right being waived and of the consequences of waiving that right. " United States v. Jaswal,
47 F.3d 539, 542 (2d Cir. 1995). The government must prove waiver by a preponderance
of the evidence . See United States v. Gaines, 295 F.3d 293, 297 (2d Cir. 2002).
A waiver is made knowingly and intelligently if the defendant has a "full awareness
of both the nature of the right being abandoned and the consequence of the decision to
abandon it." See Moran v. 	Burbine, 475 U.S. 412, 421 	(1986) . To satisfy the Fifth
Amendment, 	a 	suspect 	does 	not 	need 	to 	know 	and 	understand 	every 	possible
consequence of a waiver. Id., at 422 . The government must prove the validity of a waiver
by showing that the accused knew he could choose not to talk to law enforcement, to talk
only with counsel present, or discontinue talking at any time. See Colorado v. Spring, 479
U. S. 564, 574 (1987).
The Government must also demonstrate that defendant's Miranda waiver was
made voluntarily. 	For waiver to be voluntary, 	it must be "the product of a free and
deliberate choice rather than intimidation, coercion, or deception." Moran, 475 U.S. at
421. Voluntariness is based upon the totality of the circumstances and includes an inquiry
as to: "(1) the characteristics of the accused; (2) the conditions of the interrogation; and
17
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 17 of 34

(3) the conduct of law enforcement officials ." Green v. Scully, 850 F.2d 894, 900 (2d Cir.
1988). More specifically, the factors "include the accused 's age, his lack of education or
low intelligence, the failure to give Miranda warnings, the length of detention , the nature
of the interrogation, and any use of physical punishment. Campaneria v. Reid, 891 F.2d
1014, 	1020 (2d 	Cir. 	1989). 	Overall, 	the voluntariness inquiry considers "whether a
defendant's will 	was 	overborne" by the 	circumstances 	surround i ng 	the giving 	of a
confession. Dickerson v. United States, 530 U.S. 428, 434 (2000) (quoting Schneckloth
v. Bustamante, 412 U.S. 218,223 (1973)) .
Here, the totality of the evidence supports a finding that defendant's waiver was
made knowingly and voluntarily. There is no evidence that defendant was intoxicated or
impaired by methamphetamine or other drugs during the custodial interrogation . Sergeant
McAdoo described defendant's demeanor while in the car as "cooperative and fairly
calm. " He saw no indication that defendant was under the influence of drugs or alcohol.
Similarly, Agent Melchiorre and Investigator Stahley testified that they did not believe
defendant 	was 	under the 	influence 	of 	drugs 	or 	alcohol. 	They 	described 	him 	as
conversational, intelligent, and appropriately responsive to their questions. There is no
indication that defendant was unable to comprehend the interview or the consequences
of his decision to speak with law enforcement. 5 Under these circumstances, it is clear that
defendant's statements were knowing and voluntary. See United States v. Shores, 2: 17-
CR-83, 2019 U.S. Dist. LEXIS 97442, at * 16 (D . Vt. June 11, 2019) (holding that defendant
who was a daily user of methamphetamine gave rational and coherent answers and
5 In fact, defendant's own affidavit alleges only that he had been using methamphetamine in the days
prior to the custodial interview. It does not allege that he was high on methamphetamine on the morning
of the arrest. Nor does defendant allege that his alleged drug use impaired his cognition or his ability to
understand the consequences of his actions.
18
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 18 of 34

showed 	a 	clear 	understanding 	of 	Miranda 	rights 	and 	the 	consequences 	of 	his
incriminating statements); United States v. Williams, 17-CR-6090, 2018 U.S. Dist. LEXIS
62303, at *10-11 	(W.D.N .Y. Apr. 9, 2018) (find i ng defendant's waiver and statements
voluntarily 	even 	though 	defendant 	claimed 	he 	was 	under 	the 	influence 	of
methamphetamine) ; see also United States v. Siddiqui, 699 F.3d 690 , 707 (2d Cir. 2012)
(defendant's statements were voluntary even though she was hospitalized, restrained,
and in pain due to an injury); United States v. Dzionara-Norsen, 19-CR-6131, 2020 U. S.
Dist. LEXIS 107523, at * 15 - 19 (W. D.N.Y. June 18, 2020) (despite having autism and
mental health issues, for which he was medicated, defendant's statement was voluntary) .
Further, 	as 	discussed 	above, 	there 	is 	no 	other 	evidence 	to 	suggest 	that
defendant's will was overborne. There were no threats, no use of force , and no weapons
displayed by the interrogating officers. No promises were made to defendant, and he was
not subjected to undue influence. In fact, prior to the interrogation , the officers made
efforts to ensure defendant was comfortable by offering him a bottle of water and allowing
him to move his handcuffs to the front of his body.
For the reasons explained herein, the Court finds that the Government has proven,
by a preponderance of the evidence, that defendant's waiver of rights was knowing and
voluntary. Accordingly, the Court recommends that defendant's motion to suppress his
custodial statements be denied.
Motion to Suppress Search Warrant Evidence
Defendant moves to suppress evidence seized during the execution of federal
search warrants for his residence, vehicle, and person , as well as for Facebook and
19
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 19 of 34

Snapchat social media accounts. 6 (Dkt. No. 63, ,.m 12-46). He argues that the search
warrant applications lacked probable cause for various reasons including "gaps in the
narrative," insufficient factual details, and speculation . (Id.).
On July 23, 2021, the Honorable Jeremiah J. McCarthy, United States Magistrate
Judge, issued two warrants authorizing the Government to obtain information from Snap,
Inc. and Facebook, Inc. associated with specified social media accounts. (Dkt. No. 66).
On December 21, 2021, this Court issued three warrants authorizing the Government to
search 	a residence 	located 	1897 	Delaware Avenue, 	Falconer, 	New York; 	a 2001
Oldsmobile Bravada vehicle; and the person of defendant Myrick. 7 (Dkt. No. 67).
Upon a challenge to a probable cause finding 	made in a search warrant, 	a
reviewing court must give deference to the issuing judge. Illinois v. Gates, 462 U.S. 213,
236 (1969). The court is not to conduct a de nova review nor is it to "interpret[] affidavit[s]
in a hypertechnical, rather than a commonsense, manner." Id. Instead, the role of a
reviewing court "is simply to ensure that the magistrate had a substantial basis for
concluding that probable cause existed." Id. at 238 (internal citations omitted). To that
end, warrant affidavits are entitled to "a presumption of validity." Franks v. Delaware, 438
U.S. 154, 171 (1978). The Supreme Court has held that a defendant is entitled to an
evidentiary hearing with respect to the validity of a search warrant only if they can make
6 Defendant submitted an affidavit of standing which alleges that he was residing at 1897 Delaware
Avenue in Falconer, New York at the time of the search . (Dkt. No . 72, ,I 3). Defendant further alleges that
he is the subscriber of specific Facebook and lnstagram accounts that were the subject of the social
media warrants. (Id., ,1,1 4-6) . Defense counsel has stated that defendant does not claim standing to
challenge the search of the Oldsmobile vehicle.
7 Defendant requested that his challenge to the December 2021 search warrants be assigned to another
Magistrate Judge because this Court issued the subject search warrants . (Dkt. No. 63, ,I 15-16). The
Court considered and denied defendant's request orally during the April 24, 2024 argument on
defendant's pretrial motions.
20
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 20 of 34

a substantial 	preliminary 	showing 	that: 	(1) 	the 	warrant 	affidavit contained 	a false
statement; (2) the false statement was included intentionally or recklessly; and (3) the
false statement was integral to the probable cause finding . 438 U.S. at 155-56. The
Second Circuit has held that "[i]f, after setting aside the allegedly misleading statements
or omissions, 	the affidavit, nonetheless, 	presents sufficient information to support a
finding of probable cause, the district court need not conduct a Franks hearing ." United
States v. Salameh, 152 F.3d 88, 113 (2d Cir. 1998).
No such showing has been made here and a Franks hearing is unjustified . A
search warrant issued by an impartial magistrate is presumptively valid. United States v.
Smith , 9 F.3d 1007, 1014 (2d Cir. 1993). Where, as here, the Court is reviewing the
probable cause determination of an independent magistrate, it asks solely "whether the
issuing judicial officer had a substantial basis for the finding of probable cause ." United
States v. Wagner, 989 F.2d 69, 72 (2d Cir. 1993). Doubts regarding the existence of
probable cause should be resolved in favor of upholding the search warrant. United
States v. 	Travisano, 724 F.2d 341, 345 (2d Cir. 1983).
Applying this standard of review, the Court has reviewed the warrants and warrant
applications and finds that probable cause existed for the issuance of each warrant. The
affidavit supporting the July 2021 warrants to search defendant's social media accounts
provided a substantial basis for a finding 	of probable cause. The affidavit contains
significant detail about the investigation, including information obtained from interviews
with alleged victims and consent searches·of electronic accounts for some of the victims.
The information provided by four minor victims reflects that defendant engaged in illegal
online and in-person sexual contact with these minors. The affidavit also specifies that
21
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 21 of 34

defendant used Facebook, Snapchat, and lnstagram platforms to communicate with and
obtain sexually explicit images and videos of the minor victims . It includes detailed
descriptions of image and video files of child sex abuse material found in the victims'
accounts . It also lays out conversations between defendant and minor victims through
these social media platforms which reflect defendant's sexual exploitation of the victims.
These allegations give ample probable cause to believe that defendant had engaged in
conduct involving child pornography and sexual exploitation of children and that evidence
of such crimes was likely to be found in the social media accounts the Government sought
to search .
The December 2021 affidavit submitted in support of the Government's request to
search the residence, vehicle, and person of defendant also provided a substantial basis
for a finding of probable cause. In addition to the details of the prior investigation, the
affidavit includes information obtained from the July 2021 social media warrants and sets
forth sexually explicit conversations and files that were recovered from those searches .
The 	affidavit 	includes 	information 	obtained 	from 	two 	additional 	victims 	and 	other
unidentified 	victims. 	It also 	presents 	facts 	about 	defendant 	presently 	living 	at the
residence sought to be searched. From these allegations, the finding of probable cause
was well supported . For these reasons, it is recommended that defendant's motion to
suppress evidence gained from the July 2021 and December 2021 search warrants be
denied .
Defendant's motion to suppress should also be denied based on the "good faith
exception" established in United States v. Leon, 468 U.S. 897 (1984). 	Under Leon,
evidence seized pu rsuant to a challenged warrant is not subject to suppression so long
22
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 22 of 34

as law enforcement acted with objective and reasonable good faith, even if the judicial
officer erred in finding probable cause. Id. at 922. Here, for the reasons stated above, the
Court finds that the law enforcement officers who executed the search warrant had a good
faith basis to believe that the warrants were lawfully issued based upon a finding of
probable cause. The warrant applications certainly were "not 'so lacking in indicia of
probable cause' that it was unreasonable for the officers to rely upon" them. United States
v. 	Moore, 968 F.2d 216, 222 (2d Cir. 1992) (quoting Leon, 468 U.S. at 923). Thus,
defendant's motion to suppress may also be denied on this alternative ground.
Motion to Suppress Out-of-Court Identification
Defendant moves to suppress out-of-court identification testimony on the grounds
that it was impermissibly suggestive. 8 (Dkt. Nos. 63; 71 ). Defendant argues that because
the discovery materials repeatedly discussed his appearance and hairstyle, and he was
the only individual in the photo array with a distinctive "man-bun" hairstyle, the attention
of the victim would have been drawn to him unfairly. Defendant requests a hearing
pursuant to United States v. 	Wade, 	388 U.S. 218 (1967), to determine whether the
identification procedures used were lawful and whether the identifications were reliable.
The Government argues that a pre-trial Wade hearing is not required and that the
reliability of the several witnesses who have identified defendant should be left for the jury
to determine. (Dkt. 	No. 78). The Court has been provided a copy of a photo array
containing photographs of defendant and five individuals unrelated to this crime. (Dkt. No.
8 Defendant originally sought discovery of photo arrays which were shown to minor victims during the
investigation . (Dkt. No . 63 , ,m 57-60). In his reply memorandum, defendant acknowledged subsequent
receipt of twelve photo arrays from the Government. (Dkt. No . 71 ).
23
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 23 of 34

81 ). The Government represents that the photo array was shown to twelve victims in this
case on various specified dates. (0kt. No . 78, pg . 4 n. 2) .
A witness may identify a defendant at trial after previously identifying the defendant
out-of-court, unless "under all the circumstances ... there is a very substantial likelihood
of irreparable misidentification ." Manson v. Brathwaite, 432 U.S. 98 , 116 (1977) (internal
quotations omitted) . Under this standard, a trial witness may identify the defendant if: (1)
the 	out-of-court 	identification 	was 	not 	improperly 	suggestive; 	or 	(2) 	the 	in-court
identification will be grounded on "an independent basis in memory," United States v.
Bubar, 567 F.2d 192, 197 (2d Cir. 1977), and not solely on the impression made on the
witness by his out-of-court identification of the defendant. See United States v. Kwong,
69 F.3d 663, 666 (2d Cir. 1995). The reliability of an out-of-court identification is typically
a question for the jury to decide. See Manson , 432 U.S. at 116 ("Juries are not so
susceptible that they cannot measure intelligently the weight of identification testimony
that has some questionable feature .") ; see also Watkins v. Sowders, 449 U.S. 341, 347
( 1981) ("Where identification evidence is at issue [ ... ] no such special considerations
justify a departure from the presumption that juries will follow instructions.").
Here, the Government has met both prongs of the standard for admission of
identification testimony. First, the pretrial identification procedures used were not unduly
suggestive. "The fairness of a photographic array depends on a number of factors,
including the size of the array, the manner of presentations by the officers , and the array's
contents. " United States v. Maldonado-Rivera, 922 F .2d 934, 97 4 (2d Cir. 1990). The
"array must not be so limited that the defendant is the only one to match the witness's
description of the perpetrator." Id. "If a suspect is described 	only in terms of one
24
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 24 of 34

characteristic, 	the filler photos in an array [should] also portray people having that
characteristic. Otherwise, there may be no real identification, just a witness with the wit
to suppose that the one suspect with the salient characteristic must be the person
suspected by the authorities." United States v. Eltayib, 88 F. 3d 157, 166 (2d Cir. 1996).
Here, although the defendant's photograph shows some hair visible on the top of
his head, it is not readily apparent that he has a "man-bun" hairstyle as claimed by
defendant. Each of the other individuals depicted in the photo array have dark hair, of
varying lengths, reasonably similar to defendant's photograph . Contrary to defendant's
claim , defendant's hairstyle does not cause him to stand out from other images in the
array. Further, there is no evidence that the suspect was described by witnesses or
victims only in terms of this one characteristic. In fact, none of the victims who were shown
the photo array described or identified defendant as having a "man-bun" hairstyle during
their interviews with HSI agents. 9
Second , the 	identifications here were grounded 	on 	an 	independent basis 	in
memory. Thus , the identification procedures used do not implicate the concerns of Wade
and its progeny, which focus on eyewitness identification of strangers during often fleeting
and stressful events . See Moss v. Hofbauer, 286 F.3d 851, 862 (6th Cir. 2002) ("The
primary 	concern 	expressed 	in 	cases 	discussing 	the 	problems 	with 	eyewitness
identification relates to a witness observing and subsequently identifying a stranger.") ;
Vasquez v. Poole, 331 F. Supp. 2d 145, 151 (E.D .N.Y. 2004) (noting that the leading
Supreme 	Court 	cases 	in 	this 	area 	"developed 	out 	of 	concerns 	that 	eyewitness
identifications 	[by 	strangers] 	are 	not 	reliable"). 	The 	victims 	in 	this 	case 	identified
9 The Government has summarized the twelve victim interviews which included presentation of the photo
array. (0kt. No. 78) . In none of the interviews was a "man-bun" mentioned. (Id.).
25
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 25 of 34

defendant during law enforcement interviews based on significant personal interactions
with 	defendant 	or 	extensive 	online 	interactions 	which 	included 	observations 	of
photographs of defendant. (0kt. No . 78). In nine of 12 interviews, the victim stated that
they had met defendant in person, often more than once. The remaining three victims
stated they had extensive communications with defendant online, had knowledge of
defendant's social media accounts and social media photographs, and had received
photographs that defendant had sent of himself.
There is no basis for a Wade hearing under these circumstances. See United
States v. Bacco/lo, 725 F.2d 170, 173 (2d Cir. 1983) (holding that a pretrial hearing
regarding identification was not necessary since each of the challenged witnesses "has
seen the defendant in person and in action at approximately the time of the violations
charged in the indictment"); United States v. Busch, 09-CR-331, 2013 U.S. Dist. LEXIS
18759, at *2 (W.D .N.Y. Feb. 12 , 2013) ("Evidentiary hearings pursuant to [Wade] are not
required with respect to confirmatory identifications where the witness is sufficiently
familiar with the defendant so as to negate the possibility of suggestiveness."); United
States v. 	Ruggiero, 	824 F. Supp. 379, 396 (S.D.N.Y. 	1993) (holding that a pretrial
determination concerning the suggestiveness of an identification procedure is a matter of
trial court discretion and defendant's concerns can be satisfied at trial through the "time
honored process of cross-examination") .
Indeed, the law holds that even if an out-of-court identification was improperly
suggestive, a short interaction between the witness and defendant is sufficient to permit
the defendant to make an in-court identification of the defendant. See, e.g., Manson, 432
U.S. at 114 (witness identification sufficiently reliable when witness, an undercover police
26
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 26 of 34

officer, saw the defendant for two to three minutes); Raheem v. Kelly, 257 F.3d 122, 138
(2d Cir. 2001) (witnesses' opportunity to observe the defendant was sufficient when
witnesses glanced at man in bar over the course of approximately 15 minutes before
crime occurred); United States v. Salameh, 152 F.3d 88, 12627 (2d Cir. 1998) (witness
identification sufficiently reliable when witness, a gasoline attendant, saw defendants and
spoke with them as he pumped gas for their car). In this case, the victims had extensive
and direct interactions with defendant. Thus, even if this Court found that the out-of-court
identification procedures were improperly suggestive, which it has not, the victims should
be permitted to identify defendant at trial.
For these reasons, it is recommended that defendant's motion to suppress out-of-
court identification testimony and request for a Wade hearing be denied.
Omnibus Discovery Demands
Bill of Particulars
Defendant moves for a bill of particulars . (Dkt. No. 63, ,I 61 ). Defendant seeks
particularization as to, inter alia, whether defendant is being charged as a principal or
accomplice, details of how defendant perpetrated the charged offenses, a statement of
the harm sustained by minor victims, and a statement of the relationships between
defendant and minor victims, family members of victims, or witnesses. (Id.).
Federal Rule of Criminal Procedure 7(f) "permits a defendant to seek a bill of
particulars in order to identify with sufficient particularity the nature of the charge pending
against him , thereby enabling defendant to prepare for trial, to prevent surprise, and to
interpose a plea of double jeopardy should he be prosecuted a second time for the same
offense." United States v. Bortnovsky, 820 F.2d 572 , 574 (2d Cir. 1987). However, "[t]he
27
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 27 of 34

Government may not be compelled to provide a bill of particulars disclosing the manner
in which it will attempt to prove the charges, the precise manner in which the defendants
committed the crimes charged, or a preview of the Government's evidence or legal
theories." United States v. 	Rittweger, 259 F. Supp. 2d 275, 291 	(S.D.N.Y. 2003). In
determining whether a bill of particulars is warranted, a court is to consider "the complexity
of the offense, the clarity of the indictment, and the degree of discovery otherwise afforded
to defendants." United States v. Shoher, 555 F. Supp. 346, 349 (SONY 1983). Further, it
is well-settled that acquisition of evidentiary detail is not the purpose of a bill of particulars.
United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990).
Here, the Court finds that a bill of particulars is unnecessary because the specific
allegations contained in the Indictment, together with the discovery already provided, are
sufficiently clear. Although the charges against defendant are numerous, they are neither
complex nor difficult to understand. The Indictment specifies all the particulars of the
charged crimes, including the statutory violations, dates, elements of the offenses, the
manner and methods used to commit the violations, and the specific victim or victims
involved in each charged offense. Further, in addition to the Indictment, the Government
represents that defendant was provided substantial discovery material in clearly indexed
and searchable electronic format.
Defendant is not permitted to use a bill of particulars to learn evidentiary detail or
the Government's legal theory. The Indictment plainly allows defendant to identify the
charges against him, avoid surprise at trial, and interpose a plea of double jeopardy if
necessary. Defendant has not offered any specific facts or reasons to justify a finding that
28
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 28 of 34

further particularization is necessary. For these reasons, defendant's request for a bill of
particulars is denied.
Exclusion of Statements by Non-Testifying Co-Conspirators
Defendant makes a request under Bruton v. United States, 391 U.S. 123 (1968)
for an order requiring the Government to redact any portions of any oral or written
statements or confessions by any non-testifying co-defendants or co-conspirators that the
Government intends to introduce at trial that may tend to inculpate the defendant. (Dkt.
No. 63, ,.m 62). As a general rule, this type of motion is best considered by the trial judge.
United States v. Anguiera, 11-CR-116, 2012 U.S. Dist. LEXIS 51862, at *3 (W.D.N.Y. April
12, 2012) ("[T]he relief sought for excluding non-testifying co-conspirator statements ... [i]s
better considered by the District Judge prior to trial and deferred for that consideration").
For this reason, defendant's request is denied without prejudice to renew this motion
before the District Court.
Rule 16 Discovery
Defendant moves for discovery pursuant to Rule 16 of the Federal Rules of
Criminal 	Procedure, 	which 	requires 	that 	the 	Government 	disclose 	evidence 	and
information upon request of a defendant. (Dkt. 	No. 63, ,.m 59-60). 	Defendant's sole
discovery request is for production of photo arrays that were used by law enforcement
during victim identification of defendant. (Id.). As noted above, the Government has since
provided defendant with the requested photo arrays. (Dkt. No. 65, pgs. 49-50). Based on
this, and the Government's representation that it has provided discovery under Rule 16,
(Dkt. No. 65, pg. 39), defendant's request is denied as moot. The Government is reminded
29
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 29 of 34

that its disclosure obligations continue up through and during trial. See Fed. R. Crim. P.
16(c).
Disclosure of Brady Material
Defendant 	moves 	for 	an 	order 	compelling 	the 	disclosure 	of any 	favorable,
exculpatory or impeachment materials pursuant to Brady, Giglio and their progeny. 10
(Dkt. No. 63, ~ 63). "[A]s a general rule, Brady and its progeny do not require immediate
disclosure of all exculpatory and impeachment material upon request by a defendant."
United States v. Coppa, 267 F.3d 132, 146 (2d Cir. 2001 ). "[A]s long as a defendant
possesses Brady evidence in time for its effective use, the Government has not deprived
the defendant of due process of law simply because it did not produce the evidence
sooner." Id. at 144.
The Government submits that it is mindful of its obligations under Brady and its
progeny. (Dkt. No. 65, pg. 54). The Government states that it has already disclosed to
defendant all Brady/Giglio material currently in the Government's possession, and that it
will 	disclose any additional 	material 	should 	it arise. 	(Id.). 	Given the 	Government's
representations, defendant's motion to compel the production of Brady/Giglio material is
denied. Consistent with Coppa, the Government is reminded of its continuing obligation
to timely disclose any Brady and Giglio material to defendant. See United States v.
Padovani, 14-CR-00224, 2016 U.S. Dist. LEXIS 133400, at *9-10 (W.D.N.Y. Sept. 28,
2016).
10 Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405 U.S. 150 (1972).
30
t
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 30 of 34

Disclosure of Evidence Pursuant to Rules 404(b), 608 and 609
Defendant moves for disclosure of any evidence of prior crimes or bad acts the
Government intends to introduce at trial pursuant to Federal Rule of Evidence 404(b).
(Dkt. No . 63 , ,-r,-r 64-68) . Defendant also moves for pretrial disclosure of impeachment
evidence pursuant to Federal Rules of Evidence 608 and 609. (Id.). The Government
states that it will provide reasonable notice in advance of trial of the general nature of
prior uncharged crimes that it intends to use at trial under Rule 404(b) . (Dkt. No . 65, pgs.
54-56) . The Government contends that it has no obligation to provide pre-trial notice of
impeachment evidence under Rules 608 and 609 . (Id.). The Government states that it will
provide notice of Rule 404(b) , Rule 608 , or Rule 609 evidence pursuant to the District
Court's trial scheduling order. (/d.).
The Government is required to provide "reasonable notice in advance of trial" of
the general nature of prior uncharged crimes or bad acts it intends to introduce against a
defendant. See Fed. R. Evid. 404(b). Rule 608 of the Federal Rules of Evidence does not
contain 	the 	same 	pretrial 	notice 	requirement. 	Based 	upon 	the 	Government's
representation 	that it will 	disclose 	bad 	act or impeachment evidence 	prior to trial,
defendant's motion is denied as moot. The Court instructs that any disclosure should be
done in accordance with the District Court's pretrial order. The issue of admissibility of
evidence pursuant to Federal Rules of Evidence 404(b), 608 and 609 is left to the
determination of the District Court at the time of trial.
Early Disclosure of Witnesses and Jencks Act Materials
Defendant moves for the disclosure of witness names and statements prior to trial.
(Dkt. No. 63, ,-r 69). The Government has no general duty to disclose the identities of its
31
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 31 of 34

witnesses before trial. United States v. Bejasa, 904 F.2d 137, 139 (2d Cir. 1990). Section
3500 of Title 18 of the United States Code requires that the Government, on motion of
defendant, 	disclose 	a 	Government 	witness's 	prior 	statements 	that 	are 	in 	the
Government's 	possession 	and 	relate 	to 	the 	subject matter of the 	witness's 	direct
testimony. See also Jencks v. United States, 353 U.S. 657 (1957) ; Fed. R. Crim. P. 26.2
(procedure for producing a witness statement). A witness statement is defined as : (1) a
written statement by a witness that is signed or otherwise adopted or approved by the
witness; 	(2) 	a substantially 	verbatim 	recording 	or transcription 	of a witness's 	oral
statement; or (3) any statement however taken or recorded made by the witness to the
grand jury. 18 U.S.C. 3500(e) . Statements are not required to be produced, by law, until
after the witness has testified on direct examination, and the Court cannot mandate that
they be produced sooner. See 18 U.S .C. §3500(a); Fed. R. Crim. P 26.2(a) .
Here, the Government represents that it has provided all witness statements to
defendant at the time voluntary discovery was provided. (Dkt. 	No. 65, pg. 56). The
Government further indicates that it will provide additional Jencks Act material, if any, as
directed 	by the 	District 	Court's 	pretrial 	order. (Id.). 	In 	light of this 	representation ,
defendant's request for early disclosure of Jencks Act material is denied.
Preservation of Rough Notes
Defendant moves for an order requiring all government agents and officers to
retain and preserve all rough notes taken in the course of the investigation. (Dkt. No. 63,
,I 70) . The Government does not object to this request and states that it will endeavor to
maintain these materials, should they exist. 	Defendant's motion is granted and the
Government is directed to preserve all rough notes and items of evidence.
32
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 32 of 34

CONCLUSION
For the 	foregoing 	reasons, 	it 	is 	recommended 	that 	defendant's 	motions 	to
suppress be denied. (0kt. No. 63). It is ordered that defendant's omnibus discovery
demands are decided in the manner detailed above. (Id.).
Pursuant 	to 	28 	U.S.C. 	§636(b)(1), 	it 	is 	hereby 	ordered 	that 	this 	Report,
Recommendation, and Order be filed with the Clerk of Court.
Unless 	otherwise 	ordered 	by 	Judge 	Sinatra, 	any 	objections 	to 	the
recommendations portion of this Report, Recommendation , and Order must be filed with
the Clerk of Court within fourteen days of service of this Report, Recommendation, and
Order in accordance with the above statute, Rules 59(b), 45(a), and 45(c) of the Federal
Rules of Criminal Procedure , and Local Rule of Criminal Procedure 59 . Any requests for
an extension of this deadline must be made to Judge Sinatra.
Failure to file objections, or to request an extension of time to file objections,
within fourteen days of service of this Report, Recommendation and Order WAIVES
THE RIGHT TO APPEAL THE DISTRICT COURT'S ORDER. See Small v. Sec'y of
Health & Human Servs., 892 F.2d 15 (2d Cir. 1989).
The District Court will ordinarily refuse to consider de nova arguments, case law
and/or evidentiary material which could have been , but were not, 	presented to the
Magistrate Judge in the first instance. See Paterson-Leitch Co . v. Mass. Mun. Wholesale
Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988).
Pursuant to Local Rule of Criminal Procedure 59(c)(2), written objections "shall
specifically identify the porlions of the proposed findings and recommendations to which
objection is made and the basis for each objection, and shall be supporled by legal
33
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 33 of 34

authority." Failure to comply with these provisions may result in the District Court's
refusal to consider the objection.
SO ORDERED.
Dated: 	May 1, 2025
Buffalo, New York
34
Case 1:22-cr-00175-JLS-MJR Document 132 Filed 05/01/25 Page 34 of 34