1:22-cr-00175•USA v. Myrick
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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 34Agent 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 34verbally. 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 34characteristic, 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 34defendant 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 34officer, 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 34that 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
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