USA v. Salmon

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,
V.
RASHAWN SALMON,
Defendant.
1:24-CR-00156 JLS (MJR)
REPORT, RECOMMENDATION
AND ORDER
This case has been referred to the undersigned by the Hon. John L. Sinatra, Jr.
pursuant to 28 U.S.C. § 636(b)(1) for all pre-trial matters and to hear and report upon
dispositive motions. (Dkt. No. 17)
BACKGROUND
Defendant Rashawn Salmon ("defendant" or "Salmon") is charged with: 	(1)
conspiracy to possess with intent to distribute, and to distribute, 5 kilograms or more of
a mixture and substance containing cocaine; 400 grams or more of a mixture and
substance containing fentanyl; and 100 grams or more of a mixture and substance
containing an analogue of fentanyl , from in or about 2016 and continuing to in or around
August 28, 2024, in violation of Section 846 of Title 21 of the United States Code; (2)
possession with intent to distribute 400 grams or more of fentanyl within 1,000 feet of
a playground, on or about August 28, 2024, in violation of Section 860 of Title 21 of the
United States Code; (3) possession with intent to distribute 100 grams or more of a
fentanyl analogue within 1,000 feet of a playground, on or about August 28, 2024, in
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violation of Section 860 of Title 21 of the United States Code; and (4) maintaining a
premise for the purpose of manufacturing, distributing, and using fentanyl, within 1,000
feet of a playground, beginning in or before August 2024 and continuing to on or about
August 28, 2024, in violation of Section 856(a)(1) of Title 21 of the United States Code;
and (5) possession of a firearm in furtherance of a drug trafficking offense, between on
or about July 21, 	2020 	and 	on 	or about July 23, 	2020, 	in 	violation 	of Section
924(c)(1 )(A)(i) of Title 18 of the United States Code (the "Indictment"). (0kt. No. 50)
On March 3, 2025, defendant filed omnibus discovery demands as well as
motions to suppress evidence recovered from various search warrants. 1 (0kt. No. 29)
The Government filed a response in opposition and defendant filed a reply. (0kt. Nos.
33, 38) The day before oral argument was scheduled to be heard, defendant filed a
motion 	to 	compel 	the 	Government 	to 	produce 	the 	unredacted 	search 	warrant
applications. (0kt. No . 39) When the parties appeared before the Court on April 2,
2025, they agreed to adjourn the oral argument as to the pretrial motions in order to
meet and confer in an attempt to resolve their dispute with regard to the redactions.
The parties were unable to resolve their dispute regarding the redactions and a
further briefing schedule as to defendant's motion to compel was entered. (0kt. No. 42)
On April 18, 2025, defendant filed a supplemental motion to compel the Government
to produce the unredacted search warrant applications. (0kt. No . 45) Defense counsel
1 Together with the motions to suppress, Salmon submitted an affirmation stating that (1) he owns a
white 2019 GMC Sierra Denali Edition truck, bearing license plate number KYB6850; (2) he owns and
uses cell phones bearing the numbers 716-534-2460 and 716-550-9794; and (3) he owns and uses
the email address rashawnsalmon@gmai l. com. Salmon further submitted an affirmation stating that
(1) he is the owner of 3659 Packard Road, Niagara Falls, New York 14303 and that he resided there at
the time of the search warrant execution and (2) he is the owner of 327 Hyde Park Boulevard, Niagara
Falls, New York, 14303 and that he operated a business there at the time of the search warrant
execution .
2
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further requested permission to show the redacted search warrant applications, which
were subject to an attorney's eyes only protective order, to defendant. (Id.) The
Government filed a response in opposition and defendant filed a reply. (Dkt. Nos. 46,
48) On May 6, 2025, the Court heard oral argument as to defense counsel's motions
to compel and to show defendant the redacted applications. (Dkt. No. 49) The Court
denied defendant's motions for the reasons stated on the record . (Id.) The Court then
set a further briefing schedule for any supplemental motions by defendant. (Id.)
Defendant filed additional pre-trial motions on July 15, 2025. (Dkt. 	No. 60)
Therein , defendant moved to suppress evidence recovered from the execution of a
search warrant at a hotel room in Baltimore, Maryland on July 23, 2020 as well as a
motion to dismiss Count 5 of the Indictment. (Id.) Defendant also made additional
omnibus discovery demands, includ i ng specific Brady requests . (Id.) The Government
filed a response and defendant filed a reply. (Dkt. Nos. 61, 63) The Court heard oral
argument on August 20 , 2025 , at the conclusion of which it requested additional
briefing. (Dkt. No. 64) Supplemental briefing concluded on October 1, 2025, at which
time the Court considered the matter submitted. (Dkt. Nos. 66, 68, 69, 70)
DISCUSSION
The Court will first address defendant's motions to suppress evidence and his
motion to dismiss Court 5 of the Indictment before turning to his non-dispositive
omnibus discovery demands and the Government's request for reciprocal discovery. 2
2 Herein, the Court has addressed all of the motions made and arguments ra ised both in defendant's
initial pretrial motions filed on March 3, 2025 (Dkt. No . 29) and in his supplemental pretrial motions
filed on July 15 , 2025. (Dkt. No . 60)
3
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Motions to Suppress 3
GPS Tracker Warrant
On October 23, 2023, the Government applied for a warrant to place a GPS
tracking device on a white 2019 GMC Sierra Denali Edition truck registered to Salmon.
(See 23-MJ-5228, Dkt. No. 1) The warrant was authorized by this Court on October
26, 2023. (/d.) Defendant now moves to suppress the collected GPS data on the basis
that the warrant was not supported by probable cause. Specifically, defendant argues
that the warrant application 	failed 	to show that the vehicle was 	involved 	in the
transportation or sale of narcotics, or that it was otherwise used in furtherance of illegal
activity. Defendant also challenges the credibility and veracity of the confidential source
relied upon in the warrant application.
When considering whether to grant an application for a search warrant, "[t]he
task of the issuing magistrate is simply to make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit. ..there is a fair probability
that contraband or evidence of a crime will be found in a particular place." Illinois v.
Gates, 462 U.S. 213, 236-38 (1983). See also United States v. Gaskin, 364 F.3d 438
(2d Cir. 2004) (probable cause does not demand "certainty" but only a "fair probability"
that contraband or evidence of a crime will be found). In determining whether probable
3 Two of the warrants which defendant challenges here were signed and authorized by this Court. ( See
23-MJ-5228, 24-MJ-5179) Defendant requests that the review of the August 27, 2024 search warrant,
specifically 24-MJ-5179, be conducted by a magistrate judge or district judge "that was not involved in
the original application or issuance of the warrant." (Dkt. No. 60, pgs . 35-37) Defendant has provided
no legal authority for this request and the Court knows of no requirement or rule that the issuing
judicial officer cannot review a subsequent challenge to a search warrant they authorized . Moreover,
should defendant object to this Court's recommendations regarding defendant's motions to suppress ,
those findings are subject to a de nova review by the District Court, which was not involved in any of
the search warrant applications and authorizations discussed herein. Thus, defendant's request is
denied.
4
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cause exists to justify a search, courts must look for a reasonable nexus between the
criminal activities described in the warrant application and the places to be searched.
United States v. Singh, 390 F.3d 168, 182 (2d Cir. 2004).
In addition, warrant affidavits are entitled to "a presumption of validity." Franks
v. Delaware, 438 U.S. 154, 171 (1978). Thus, courts reviewing the probable cause
determination of an independent magistrate ask 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. See United States
v. Travisano, 724 F.2d 341, 345 (2d Cir. 1983).
Here, the warrant application for the GPS tracker was supported by a 15-page,
23-paragraph affidavit from FBI Special Agent Curtis Middlebrooks. (See 23-MJ-5228,
Dkt. No. 1) Therein, SA Middlebrooks stated that a confidential human source ("CHS")
informed law enforcement that they were recently supplied narcotics by Salmon. (Id. at
,m 7-9) The CHS also provided information linking Salmon's Denali truck to his drug
trafficking activities. (Id.) The affidavit provided a description of the CHS's criminal
history and indicated that law enforcement believed the information provided by the
CHS to be reliable, since it was corroborated through independent investigation and
information provided by other confidential sources . (Id., n. 2) To that end, the affidavit
included 	information 	from 	another 	CHS, 	who 	provided 	additional, 	corroborating
information about Salmon's drug trafficking activities. (Id. at ,I 10) The information
provided by the other CHS was further corroborated by electronic communications. (Id.
at ,-J,-J 12-16) SA Middlebrooks also indicated that investigators observed Salmon's
5
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Denali truck parked in front of Salmon's residence and business at all different times of
day and night. (/d. at ,i 17)
"Information may be sufficiently reliable to support a probable cause finding if
the person providing the information has a track record of providing reliable information,
orif it is corroborated in material respects by independent evidence ." Wagner, 989 F.2d
at 72-73 (emphasis added). "Even where an independent informant has no proven
record, if an informant's declaration is corroborated in material respects, the entire
account may be credited, including parts without corroboration." Id. In evaluating the
totality of circumstances, the court may consider whether the information an informant
provides is corroborated by independent police investigation. United States v. Canfield,
212 F.3d 713, 719-20 (2d Cir. 2000) . See also United States v. Williams, 544 F.3d 683,
690 (6th Cir. 2008) (holding that a search warrant was supported by probable cause
when it corroborated information "through multiple sources," including two cooperating
witnesses).
Here, a CHS offered information indicating that Salmon was involved in drug
trafficking activities and that his Denali truck was used in furtherance of those activities.
The CHS's account was corroborated, in material respects, by another confidential
source as well as through independent police investigation. Also, SA Middlebrooks
affirmed that, in his experience, it is common practice for narcotics traffickers to utilize
vehicles in furtherance of drug trafficking. (See 23-MJ-5228, Dkt. No . 1; ,i 3) For these
reasons, and based on the totality of information presented in the warrant application,
6
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the Court finds sufficient probable cause existed to authorize GPS tracking of Salmon's
vehicle. 4
Search of Salmon's Residence and Business
On August 27, 2024, the Government applied for a warrant to search Salmon's
residence, 	located at 3659 	Packard 	Road, 	Niagara Falls , New York, 	as well as
Salmon's automotive business, located at 327 Hyde Park Boulevard , Niagara Falls ,
New York.5 	(See 	24-MJ-5179 , Dkt. 	No . 1) 	The warrant 	application 	also 	sought
permission to search various properties and vehicles associated with Paul Fields,
Edward Rollie, and Jermaine McQueen. (Id.) The warrant application, which requested
nineteen search warrants in total, was authorized by this Court on August 27, 2024.
(Id. at Dkt. Nos. 1-20)
The warrant to search Salmon's home and business was executed on August
28, 2024. During the search of Salmon's business, law enforcement recovered a metal
container containing a kilogram of a substance containing fentanyl. Law enforcement
also found bags continuing a fentanyl analogue and quinine, a substance commonly
used to cut heroin and fentanyl. 	During the search of defendant's residence, 	law
enforcement found a suitcase containing drug manufacturing equipment, a digital
scale, 	$15,000 	in 	cash , 	over 	$400,000 	in 	jewelry, 	presses 	commonly 	used 	to
4 The warrant application has been filed under seal and is subject to a protective order. (Dkt. No . 21)
Thus , the Court does not discuss herein all of the information contained in the warrant application .
However, in determining whether probable cause existed here, the Court has reviewed and considered
the unredacted search warrant application in its entirety.
5 In the supplemental pretrial motions, defense counsel appears to renew the prior motion to compel
producti on of an unredacted copy of the warrant application for Salmon's home and business. (Dkt. No
60) However, defense counsel acknowledges that they have been provided with a "mostly unredacted
version of the search warrant affidavit at issue." Id. at pg . 29 . Because defense counsel has been
provided with a substantially unredacted copy of the warrant application, and for the reasons
previously stated on the record by th is Court on May 6, 2025 , the renewed motion to compel is denied.
7
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manufacture narcotics, and body armor. Also discovered in defendant's home were
writings related to narcotics trafficking, ledgers detailing expenditures by defendant,
and federal court paperwork related to Robbie Johnson, an individual arrested in
Kansas City, Missouri and found to be in possession of approximately 5 kilograms of
cocaine.
The application seeking the nineteen search warrants , including the warrants to
search Salmon 's home and business, was supported by a 169-paragraph affidavit by
FBI Special Agent Curtis Middlebrooks. (See 24-MJ-5179; Dkt. No. 1) SA Middlebrooks
also submitted a 26-paragarph supplemental affidavit, supplying additional information
with regard to Salmon's residence and business . (Id.) The main supporting affidavit
detailed law enforcement's long-term investigation of a large-scale drug trafficking
organization 	in 	the 	Western 	District 	New 	York, 	and 	further 	detailed 	Salmon's
involvement in that operation for over a decade. (Id.) The affidavit described several
traffic stops involving Salmon between 2009 and 2014, which resulted in the seizure of
money and/or narcotics. (Id. at i126, i128) The affidavit also contained information from
numerous confidential sources indicating that Salmon has been a large-scale supplier
of cocaine and fentanyl for many years. 6 (Id. at i'li'l 40-48; i'li'l 50-55; i'li'l 115-19) These
sources provided law enforcement with specific information regarding the nature and
extent of Salmon's drug trafficking activities over the past few years, includ i ng in 2022,
6 With regard to each CHS relied upon, SA Middlebrooks discussed the benefit that each individual
was receiving , if any, as a result of their cooperation , as well whether the information was based upon
personal knowledge or personal conversations with individuals either directly involved or directly
associated with individuals involved. (Id. at ,m 31-38) The affidavit also specified that, as to each CHS ,
investigators deemed the information provided to be reliable, because it was corroborated through
independent police investigation, recorded communications, and information provided by other
confidential sources. (Id.) Indeed, a review of the information provided by each confidential source in
the warrant application shows that their accounts as to Salmon's drug trafficki ng activities were
corroborated, in material respects, by other confidenti al sources discussed in the warrant application.
8
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2023, and in the winter of 2024. (Id.) This information was recounted in detail in the
affidavit. (Id.)
SA Middlebrooks further averred that, on July 23, 2020 , Salmon was in a vehicle
with 	Kinnard 	Turner and 	Korey 	Cornish 	when 	members 	of the 	Baltimore 	Drug
Enforcement Administration (DEA) executed a reverse buy for twelve kilograms of
cocaine from Kinnard Turner and Korey Cornish. (Id. at ,i 28) Middlebrooks stated that
a search warrant was obtained fo r Salmon's hotel room and vehicle at that time,
resulting in the seizu re of a firearm and over $100,000.7 (Id.) The affidavit further
detailed that in November of 2018 , a Toyota Prius shipped from Niagara Falls, NY had
a false compartment containing $359,960 in US currency. (Id. at ,i 29) Video footage
showed an 	individual dropping off the 	Prius and then entering a Toyota Tundra
registered to Salmon . (Id.)
The affidavit also included information obtained from GPS tracking of Salmon's
vehicle, which corroborated information provided by confidential sources and showed
Salmon's connection to 	Fields, 	McQueen, 	and 	Rollie, 	individuals who were also
involved in distributing cocaine and fentanyl. 8 (Id. at ,i 138) The affidavit detailed
Salmon's connection to another known narcotics trafficker, and pole camera footage
revealed a brief meeting between Salmon and this individual on July 17, 2024, outside
of Salmon's automotive business. 	(Id. 	at ,i,i 139-42) The affidavit also contained
evidence that, between October 7, 2020 and June 26, 2023, Salmon paid his Amex
7 It appears to be undisputed that a firearm was recovered from a hotel room rented by Salmon on July
23, 2020 . While a large sum of money was also recovered by law enforcement at the time of the
reverse buy, the money was not found in Salmon's hotel room. The Court discusses this incident, and
its impact on the probable cause determination, in more detail below, in conjunction with defendant's
request for a Franks hearing.
8 SA Middlebrooks' affidavit provided detailed information as to Fields , McQueen, and Rollie's
involvement in narcotics trafficking . ( See generally 24-MJ-5179 , Dkt. No. 1)
9
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bills with structured money orders purchased from US Postal SeNice in amounts
totaling $134,825.61 (Id. at ,m 154-59) SA Middlebrooks explained that, based on his
experience and knowledge, narcotics traffickers often structure cash to conceal or
disguise the illegal source of their money. (Id.) 	In his supplemental affidavit, SA
Middlebrooks 	set forth 	evidence 	related 	to 	Salmon's 	involvement in 	fraudulently
obtaining Economic Injury Disaster Loan funds to purchase 327 Hyde Park Boulevard,
and explained why evidence of wire fraud and money laundering were likely to be found
at Salmon's residence and/or automotive business. (See 24-MJ-5179, Supplemental
Affidavit, at ,m 4-25)
Here, the totality of information and circumstances presented in the warrant
application, viewed in a practical and common sense manner, demonstrated a fair
probability that contraband or evidence of illegal activity, including narcotics trafficking,
wire fraud, 	and money laundering, would be found at Salmon's residence and/or
automotive business .9 Thus, the Court finds that a substantial basis existed for the
finding of probable cause and the issuance of a search warrant as to 3659 Packard
Road and 327 Hyde Park Boulevard.
Defendant contends that probable cause did not exist because the information
in the warrant application was stale. There is "no bright-line rule for staleness ... which
instead must be evaluated on the basis of the facts of each case." United States v.
Raymonda, 780 F.3d 105, 114 (2d Cir. 2015) (quotations and citations omitted). "Two
critical factors in determining whether facts supporting a search warrant are stale are
9 The warrant application has been filed under seal and is subject to a protective order. (Dkt. No. 21)
Thus, the Court does not discuss herein all of the information contained in the warrant application .
However, in determining whether probable cause existed here, the Court has reviewed and considered
the unredacted search warrant application in its entirety.
10
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the age of those facts and the nature of the conduct alleged to have violated the law,"
and "when the supporting facts present a picture of continuing conduct or an ongoing
activity, ... the passage of time between the last described act and the presentation of
the application becomes less significant." United States v. Orliz, 143 F. 3d 728, 732 (2d
Cir. 1998) (quotations and citations omitted) . Thus, "[f]acts of past criminal activity that
by themselves are too stale can be sufficient if the affidavit also establishes a pattern
of continuing criminal activity so there is reason to believe that the cited activity was
probably not a one-time occurrence." Wagner, 989 F.2d at 72. Moreover, "[n]arcotics
conspiracies are the very paradigm of the continuing enterprises for which the courts
have relaxed the temporal requirements of non-staleness." United States v. Rowell,
903 F.2d 899, 903 (2d Cir. 1990) (alteration and citation omitted). To that end, courts
have found probable cause to remain current in narcotics cases even where the gap
between the most recent information and the search was substantial. See United
States v. Melissas, 05 Cr. 107, 2005 U.S. Dist. LEXIS 22132 (S.D.N.Y. Sept. 19 , 2005).
A review of the affidavit at issue here demonstrates that even though much of
the information presented about Salmon was historical, probable cause continued to
exist at the time the warrant was signed on August 27, 2024. This is not a scenario
where an isolated observation indicated potential criminal activity at a location that was
not searched until much later. Instead, the affidavit contained evidence that Salmon
was involved in a large-scale and wide-ranging narcotics distribution operation for
many years. This enterprise involved large quantities of drugs and multiple individuals,
with supporting activities taking place at various locations both inside and outside of
the Western District of New York. Information provided by confidential informants,
11
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which was corroborated through other sources as well as through independent police
investigation, depicted an ongoing and continuous pattern of conduct by Salmon.
Moreover, the warrant contained evidence tending to show that Salmon was involved
in illegal conduct in the spring and summer of 2023 as well as in the winter of 2024.
The warrant also described 	a meeting 	between 	Salmon 	and 	a known 	narcotics
trafficker at Salmon's automotive business on July 17, 2024, a little over a month before
the warrant was issued. This information must be considered in light of the nature of
the crimes charged and the totality of the information contained in the affidavit. See
Singh, 390 F.3d at 181-82 (finding that, in the case of alleged ongoing activity, a lapse
of twenty months between information in affidavit and search warrant application did
not render request stale); Rowell, 903 F.2d at 903 (finding that an eighteen-month
delay from the informant's statement to the wiretap application was not stale in a
narcotics conspiracy); United States v. 	Woods, 	15-CR-142, 2017 U.S. Dist. LEXIS
107193 (W.D.N.Y. June 12, 2017) (noting that "stale" allegations can be revitalized by
additional, current information). 10
The Court also rejects defendant's argument that the warrant application lacked
probable cause because it provided an insufficient nexus between defendant's alleged
10 The nature of some of the evidence being sought also supports the finding of probable cause. SA
Middlebrooks averred that narcotics traffickers frequently maintain books, records, receipts, notes,
ledgers, airline tickets, money orders, and other papers related to the transportation, sale, and
distribution of controlled substances . In addition, the supplemental affidavit and its accompanying
attachment authorized law enforcement to search for books, records, bank statements, and other
documentary evidence of wire fraud related to the allegations of EIDL fraud . The documents, ledgers,
and other records referenced here were not temporary in nature or likely to dissipate over time.
Indeed, "[u]nlike drugs or cash , records of past activity are likely to be maintained over time, especially
if the activity involved" substantial dollar amounts over several years . United States v. LaMorte, 744 F.
Supp. 573, 576 (S.D.N.Y. 1990). See also United States v. Mullen, 451 F. Supp. 2d 509, 544 (W.D .N.Y.
2006) ("search warrants issued for books and records of a criminal enterprise remain fresh for
probable cause purposes for years") (internal citations omitted).
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crimes and the places to be searched. An officer's affidavit in support of a warrant must
"establish[] a sufficient nexus between the criminal activities alleged and the place to
be searched." Singh, 390 F.3d at 182. Importantly, "[a] showing of nexus does not
require direct evidence and may be based on [a] reasonable inference from the facts
presented based on common sense and experience." Id. See also United States v.
Milner, 3:23-CR-79, 2024 U.S. Dist. LEXIS 33898 (D. Conn. Feb. 21, 2024) (stating
that a finding of probable cause to search the residence of a suspected drug dealer
does 	not 	require 	direct observations 	of drugs 	or other evidence 	of criminality).
Moreover, a search warrant "does not require probable cause of the use of the property
in furtherance of criminal conduct, so long as there is probable cause that the location
to be searched contains relevant evidence of the criminal conduct." United States v.
Silva, 146 F.4th 183 (2d Cir. 2025) (emphasis in original).
In the warrant application, SA Middlebrooks acknowledged that, beyond the
information set forth 	therein, 	he 	had 	no specific information that narcotics were
presently stored at Salmon's residence or business. (See 24-MJ-5179; Dkt. No. 1; ,I
162) However, Middlebrooks went on to explain that based on his training, experience,
and participation in the instant investigation, as well as based on his discussions with
other experienced law enforcement agents, he has learned that large-scale narcotics
traffickers, such as Salmon, often keep large quantities of narcotics and currency at
their residences in order to maintain and finance their illegal enterprise. (Id.) SA
Middlebrooks further explained that narcotics traffickers often secrete contraband;
proceeds of drug sales; books, papers, and records related to drug transactions and
distribution; and drug paraphernalia such as scales, plastic bags, and cutting agents,
13
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in secure locations within their residences or places of business, for easy access and
to conceal these items from law enforcement. (Id.) See also United States v. Fama,
758 F.2d 834, 838 (2d Cir. 1985) ("drug traffickers frequently maintain at their homes
large amounts of cash, drugs, books, ledgers and other documents evidencing their
criminal activities").
The Second Circuit has consistently recognized that "a law enforcement officer's
experience and training may permit the officer to discern probable cause from facts
and circumstances where a layman might not." United States v. Babilonia, 854 F.3d
163, 178 (2d Cir. 2017) (internal citations omitted). See also Fama, 758 F.2d at 838
(noting that "an agent's expert opinion is an important factor to be considered by the
judge reviewing a warrant application"). Thus, probable cause determinations are
frequently upheld in situations where, like here, there is evidence that an individual is
involved in significant or high-level narcotics trafficking and a law enforcement officer
opines that drug traffickers often maintain evidence of their crimes at their residences.
United States v. Fernandes, 50 F. Supp.3d 398 (W.D.N.Y. 2014). See also United
States v. Pignard, 06 Cr. 718, 2007 U.S. Dist. LEXIS 8611 (S.D.N.Y. Feb. 6, 2007)
("courts in this Circuit have consistently ruled that it is proper for a judge to find probable
cause to search a residence where there is evidence of narcotics trafficking and a law
enforcement officer has opined that narcotics traffickers keep evidence of their illicit
activities at their residence").
The 	information 	in 	the 	warrant tying 	Salmon 	to 	a continuing, 	large-scale
narcotics distribution 	operation, 	considered 	in 	conjunction 	with 	SA Middlebrook's
opinion, provided a sufficient showing that narcotics or other evidence of criminality
14
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was likely to be found at Salmon 's residence or business. See United States v. Mullen,
451 	F. Supp. 2d 509, 542-43 (W. D.N .Y. 2006), adopted by 451 	F. Supp. 2d 509
(W.D.N.Y. 2006) (although agent had no specific information connecting the drugs at
issue to the defendant's residence, the search warrant was supported by probable
cause 	because, 	based 	on 	agent's 	experience 	and 	participation 	in 	narcotics
investigations, dealers maintain evidence of their crimes at their residences); United
States v. Rivera-Figueroa, 17-CR-183, 2019 U.S. Dist. LEXIS 8805 (W.D.N.Y. Jan. 7,
2019) (detailed evidence in the search warrant that defendant was "high level cocaine
trafficker," coupled with agent's opinion that defendant would likely have drugs and
sales proceeds at his home, was alone enough to establish probable cause for a
warrant to search the residence); United States v. Davidson, 10-CR-6213 , 2013 U.S.
Dist. 	LEXIS 124713 (W.D .N.Y. Aug. 29, 2013) (warrant upheld where challenged
affidavit established probable cause to believe defendant was involved in a significant
drug trafficking operation, and agent recounted his opinion, based on training and
experience, that individuals who sell significant quantities of narcotics are likely to
maintain records of those activities at their residence).
For all of these reasons, the Court finds that the warrant application contained
sufficient probable cause to authorize a search of Salmon's residence and business.
Request for a Franks Hearing
Defendant contends that a Franks hearing is necessary because the warrant
application for defendant's residence and business included false and misleading
information. The standard for entitlement to a Franks hearing is high, Rivera v. United
States, 928 F.2d 592 , 604 (2d Cir. 	1991 ), and requires a "substantial preliminary
15
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showing" that a false statement was knowingly and intentionally, or with reckless
disregard for the truth, included in the affidavit for the search warrant. Franks, 438 U.S.
at 155-56. See also United States v. Mandell, 710 F. Supp. 2d 368 , 372 (S.D.N.Y.
2010) ("Hearings under Franks are not freely granted .") . Defendant has failed to meet
this high burden.
Defendant submits that the warrant affidavit was misleading because, in addition
to seeking permission to search Salmon's residence and business, it also sought
authorization to search seventeen additional targets and included information as to
alleged narcotics trafficking by Paul Fields, Edward Rollie, and Jermain McQueen.
Defendant argues that the evidence supplied as to these other individuals was "more
direct 	and 	compelling" 	than 	the 	evidence 	pertaining 	to 	Salmon, 	and 	that 	law
enforcement included such information in the warrant application in order "to cloud the
judgment of the magistrate." The Court disagrees. The information in the warrant
application 	regarding 	Fields, 	Rollie, 	and 	McQueen, 	as 	well 	as 	the 	application's
references to the other premises and vehicles to be searched, was in no way confusing
or misleading. In fact, the warrant application included a chart listing each subject of
the search warrant and the specific corresponding paragraphs supporting the probable
cause offered in support of each requested search. (See 24-MJ-5179 , Dkt. No . 1; pg.
18) Moreover, the information regarding Salmon's alleged involvement in narcotics
trafficking as well as other illegal activities was, in and of itself, sufficiently detailed and
robust, and was 	not dependent on the probable cause findings 	as to the other
individuals discussed in the warrant application .
16
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Defendant also generally argues that warrant affidavit "misstated the historic
information about Mr. Salmon," "misrepresented Mr. Salmon's relationship to other
individuals," and "overstated 	information 	it obtained from 	confidential informants."
These conclusory and unsupported allegations are insufficient to warrant a Franks
hearing. See Franks, 438 U.S. at 171 (noting that the request for a Franks hearing
must be more than conclusory and should include affidavits or sworn or otherwise
reliable statements in support of the challenger's claim of falsity or reckless disregard
for the truth); 	Velardi v. 	Walsh, 	40 F.3d 569, 573 (2d Cir. 1994) (explaining that
unsupported, conclusory allegations cannot support a challenge to the validity of the
warrant); 	United States v. 	Dupree, 781 	F. Supp. 2d 	115, 	144-46 (E.D.N.Y. 2011)
(denying defendants' request for a Franks hearing where the defendants' assertions
were not supported by an offer of proof, such as an affidavit from a witness with
personal knowledge or an otherwise reliable witness statement).
Lastly, 	defendant argues that a Franks hearing 	is 	necessary because the
warrant application contained false information regarding his involvement in a reverse
drug buy on July 23, 2020. As noted above, SA Middlebrook's affidavit stated that "on
July 23, 2020, [Salmon was] in a vehicle with Kinnard Turner and Korney Cornish, when
members of the Baltimore Drug Enforcement Administration (DEA) executed a reverse
buy for 12 kilograms of cocaine from Kinnard Turner and Korey Cornish." (See 24-MJ-
5179, Dkt. No. 1, ,r 28) The affidavit went on to state that "as a result, a search warrant
was obtained for Salmon's hotel room and vehicle, which resulted in the seizure of a
firearm and over $100,000." (Id.) Defendant contends that these statements were false
17
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and misleading because (1) Salmon was not present when the reverse buy occurred;
and (2) no currency was recovered from the search of his hotel room.
First, the Court does not agree that the statement in the warrant application
referencing Salmon's presence during a reverse controlled purchase of narcotics was
false 	or misleading. 	On 	July 23, 2020, 	a warrant to search 	Room 	10119 of the
Renaissance Harbor Hotel, in Baltimore, Maryland, was signed by the Honorable
Thomas M. DiGirolamo, United States Magistrate Judge for the District of Maryland.
The warrant application was supported by an 8-page, 21-paragraph affidavit prepared
by FBI Special Agent Michael W. Bauknight, which noted that Salmon had rented the
subject hotel room from July 21, 2020 to July 23, 2020. SA Bauknight's affidavit went
on to detail a reverse buy on July 22, 2020, during which Kinnard Turner provided
money 	to 	a 	confidential 	source 	in 	exchange 	for 	twelve 	kilograms 	of 	cocaine.
Information provided in SA Bauknight's affidavit, which was corroborated by hotel
surveillance, 	law enforcement surveillance, 	and 	independent police 	investigation,
showed that, on the day of the buy, Salmon, Turner, and Korey Cornish traveled from
the Renaissance Hotel in Baltimore, Maryland, where Salmon had rented the room, to
a hotel in Arlington, Virginia, where the reverse buy took place. Information provided in
the affidavit also showed that, on the morning of the controlled buy, Salmon was in
possession of a black duffle bag which was later used to transport the money that
Turner provided to the confidential source in exchange for the cocaine. The affidavit
also explained how Salmon was present in or around the hotel in Arlington, Virgina,
together with Turner and Cornish, at the time the controlled buy occurred.
18
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Thus, while law enforcement may not have had information that Salmon was
physically present in the hotel room where the reverse buy occurred, law enforcement
was in possession of credible information that Salmon was in the immediate vicinity
and had some involvement in the narcotics transaction. 11 Moreover, SA Middlebrooks
made clear, in the warrant application for Salmon's residence and business, that while
Turner and Cornish were later convicted, 	upon a plea of guilty, to conspiracy to
distribute five kilograms or more of cocaine, Salmon was not charged and the Baltimore
DEA was not investigating Salmon with regard to the July 22, 2020 reverse controlled
buy. (See 24-MJ-5179, Dkt. No. 1; 1128, n. 11) Thus, SA Middlebrooks' statement that
Salmon was present in a vehicle with Turner and Cornish when the Baltimore DEA
conducted a reverse buy was not materially false or misleading as to warrant a Franks
hearing. See United States v. 	Moody, 20-CV-350, 2021 	U.S. Dist. 	LEXIS 110099
(W.D.N.Y. Jan. 19, 2021) (although the record appears to establish that the affiant
incorrectly identified the building as a single-family dwelling when it was a two-family
dwelling and incorrectly stated where the drug sale occurred, these allegations were
not material to the probable clause analysis). 12
Likewise, 	defendant 	is 	not 	entitled 	to 	a 	Franks 	hearing 	based 	on 	SA
Middlebrooks' statement that $100,000 was recovered from Salmon's hotel room on
11 In fact, the Government proffers that "the cocaine was sold to Turner [by the confidential source]
less than 10 minutes after Salmon, Turner, and Cornish entered the elevator together [at the hotel] with
the duffle bag full of money." (0kt. No. 61, pg . 32) Defendant has not offered any evidence
contradicting this statement, which is corroborated by the totality of information set forth in SA
Bau knight's affidavit in support of the search warrant for Salmon's hotel room .
12 SA Middlebrooks indicated that the reverse buy occurred on July 23, 2020. However, it is clear from
SA Bauknight's affidavit that the reverse buy occurred on July 22, 2020, and that the search of the
Renaissance Hotel room occurred on July 23, 2020. Based on the totality of the circumstances here,
the Court finds no evidence that SA Middlebrooks included the incorrect date on purpose. Moreover,
the fact that the buy occurred on July 22 rather than July 23 was immaterial to the finding of probable
cause.
19
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July 23, 2020. Indeed, the Government concedes that while a large sum of money was
recovered at the time of controlled buy, it was not recovered from the room Salmon
rented at the Renaissance Hotel. (0kt. No . 61, pgs. 30-33) Instead, it was recovered
from Kinnard Turner. (Id.) Here, there is no indication that SA Middlebrooks included
the incorrect information on purpose or with an intent to mislead. In fact, the record
discussed above suggests that law enforcement had credible information that the bag
containing the money used for the reverse buy was in Salmon's possession earlier that
same day. Franks teaches that not all statements in an affidavit have to be true, rather
"the statements [must] be believed or appropriately accepted by the affiant as true."
United States v. Campino, 890 F.2d 588, 592 (2d Cir. 1989) (internal citations and
quotations omitted). See also United States v. Simpson, 131 F. Supp. 2d 316, 324 (D.
Conn. 2001) (allegations of negligence or innocent mistake are insufficient to warrant
a Franks hearing); 	United States v. 	Nejad, 436 F. Supp. 3d 707 (S.D.N.Y. 2020)
(denying request for a Franks hearing where defendant failed to make the requisite
substantial showing of credible and probative evidence demonstrating that any of these
alleged misstatements were deliberately false or made with reckless disregard for the
truth).
Finally, even if the Court were to determine that SA Middlebrooks' statements in
the warrant application regarding the reverse buy and the search of Salmon's hotel
room on July 23, 2020 were false or misleading, which they were not, a Franks hearing
still would not be warranted because such statements were not material to the probable
cause determination . To determine whether a misstatement in an affidavit is material,
the court must "set[ ] aside the falsehoods in the application . . . and determine
20
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[w]hether the untainted portions [of the application] suffice to support a probable cause
... finding." United States v. Rajaratnam, 719 F.3d 139, 146 (2d Cir. 2013) (internal
citations and quotations omitted). According to the Second Circuit, "[t]he ultimate
inquiry is whether, after putting aside erroneous information and [correcting] material
omissions, there remains a residue of independent and lawful information sufficient to
support [a finding of] probable cause." Id. (quoting Canfield, 212 F.3d at 713).
Information regarding Salmon's involvement in the reverse controlled buy with
Turner, 	as well 	as the purported 	recovery of money from 	Salmon's 	hotel 	room,
constituted 	one 	portion 	of 	one 	paragraph 	in 	SA 	Middlebrooks' 	169-paragarph
supporting affidavit. Were this Court to excise all of the information regarding the
incidents of July 22 and 23, 2020 from the warrant application, sufficient probable
cause would still have existed to authorize the search of Salmon's residence and
business. United States v. Wapnick, 60 F.3d 948, 956 (2d Cir. 1995) (concluding that
Franks hearing not required where "alleged false statement constituted 	only one
paragraph of an eleven-page affidavit; even if that paragraph were redacted, the
remainder of the affidavit provided ample probable cause for the search warrant").
For all of these reasons, the Court finds no basis to conduct a Franks hearing.
Search of the Renaissance Hotel Room
Salmon's Standing
Salmon moves to suppress all evidence recovered from the execution of the
warrant to search Room 10119 of the Renaissance Hotel in Baltimore, Maryland on
July 23, 2020. In order to assert a suppression claim, a defendant must first establish
that he had a reasonable expectation of privacy in the place or location searched.
21
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United States v. Lewis, 62 F.4th 733, 741 (2d Cir. 2023). In deciding whether a search
infringed on an individual's privacy rights, a court must consider "first, whether the
individual 	had 	a 	subjective 	expectation 	of 	privacy; 	and 	second, 	whether 	that
expectation of privacy is one that society considers reasonable." United States v.
Hamilton, 538 F.3d 162, 167 (2d Cir. 2008) . The burden of establishing a reasonable
expectation of privacy rests on the defendant. See United States v. Cruz, 475 F. Supp.
2d 250 (W. D.N.Y. 2001 ).
A person staying in a hotel room may invoke the protections of the Fourth
Amendment if he has a right to private occupancy of the room. See Hoffa v. United
States, 385 U.S. 293 (1966). See also United States v. Parizo, 514 F.2d 52 (1975)
(finding that when defendant's rental agreement with the hotel expired, he no longer
had a right or expectation of privacy in the hotel room).
Salmon's initial standing affidavit indicated that Room 10119 was rented to him
at the time of the search. (0kt. No. 63-1) However, it failed to indicate that Salmon
actually stayed in the room on July 23, 2020, or at any time during the rental period.
Thus, during oral argument, the Court questioned whether Salmon had sufficiently
asserted standing in the hotel room. Salmon then submitted a supplemental affidavit
stating that he stayed in Room 10119 of the Renaissance Hotel as a guest "at all times
related to the July 23, 2020 search warrant." (0kt. No. 68 - 1) Salmon states that he was
the "primary guest" in the hotel room; that he paid for the room; that he had a key to
the room; that he had the power to permit or exclude others from the room; and that he
had an expectation of privacy in the room and its contents. (/d.)
22
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The Government continues to argue that Salmon has not established standing.
And the Court notes that SA Bauknight's affidavit indicated that Tanasha Lightfoot was
listed as having access to Room 10119 between July 21, 2020 and July 23, 2020. The
affidavit further indicated that on July 22, 2020, Salmon contacted the Renaissance
Hotel and added "Danny" and "Tiffany Lucas" as two additional individuals who would
be permitted to have access to Room 10119.
The Court does not need to reach the standing issue. Even assuming that
Salmon has standing to object to the search of Room 10119, for the reasons discussed
below, the warrant authorizing the search of the Renaissance Hotel room on July 23,
2020 was supported by probable cause.
Probable Cause
A discussed above, the July 23, 2020 application to search Room 10119 of the
Renaissance Hotel, in Baltimore, Maryland, was supported by an affidavit from SA
Bauknight. The affidavit indicated that Kinnard Turner and a confidential source agreed
to meet on July 22, 2020 in order to exchange $325,000 for ten kilograms of cocaine,
as 	well 	as 	a further 	purchase 	by 	additional 	co-conspirators 	following 	the 	initial
exchange. That same day, Turner met with Korey Cornish, who was operating a Honda.
Turner and Cornish proceeded to the Renaissance Hotel in Baltimore, where Salmon
had rented a room from July 21 , 2020 to July 23, 2020. Cornish then met with Salmon
and Tanasha Lightfoot, 	and Cornish, Salmon, and 	Lightfoot all entered Cornish's
Honda. Renaissance Hotel security video from earlier that morning showed that, prior
to Turner and Cornish's arrival, Salmon walked to the Honda while carrying a duffle
bag. Salmon was also seen on hotel surveillance carrying a duffle bag, and four
23
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additional bags, when 	he checked 	into the Renaissance Hotel. 	Law enforcement
observed Turner's vehicle and Cornish's Honda leave the Renaissance Hotel and
proceed to the hotel in Arlington, Virgina, where Turner and the confidential source
previously agreed to conduct the narcotics transaction.
SA Bauknight's affidavit further stated that when Turner and Cornish's vehicles
arrived at the Arlington hotel, Salmon, Turner, and Cornish went inside. The men later
exited, and Turner then went back in to meet with the confidential source. According
SA Bauknight, Turner informed the source that he would return with money to purchase
five kilograms of cocaine . Turner then went back to the Honda where he met with
Cornish and Salmon. During this time, Salmon was observed discarding two broken
Renaissance Hotel key cards in the trash. Cornish was observed walking away from
the Honda with a duffle bag . Surveillance video then showed Cornish, Turner, and
Salmon walking back into the Arlington hotel. 13
SA Bauknight went on to explain that Turner then met with the confidential
source in a room at the Arlington 	hotel, where Turner exchanged the duffle bag
containing the money for five kilograms of cocaine, plus an additional seven kilograms
of cocaine which Turner agreed to pay for at a later date. SA Bauknight averred that
the duffle bag provided to the confidential source was the same duffle bag that Cornish
had retrieved from the Honda and that Salmon had carried out of the Renaissance
Hotel earlier in the day. Turner then left the Arlington hotel and was arrested. Cornish,
Salmon, and Lightfoot were detained at the scene, and Salmon was later released. SA
Bauknight averred 	that, 	based 	on 	Turner's 	communications with 	the 	confidential
13 Once inside the hotel, Cornish, Salmon, and Turner walked toward the elevator. Surveillance was no
longer able to observe the men at this point.
24
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source, Bauknight believed that Turner was arranging to have cocaine customers,
namely Salmon, in Arlington in order to purchase kilograms of cocaine.
"Probable cause is not a high bar." District of Columbia v. Wesby, 138 S. Ct.
577, 586 (2018). And a reviewing court must afford great deference to warrants issued
by neutral and detached magistrates. See United States v. Falso, 544 F.3d 110, 117
(2d Cir. 2008). The assertions in SA Bauknight's affidavit, which showed that Salmon
likely traveled from the Renaissance Hotel in 	Baltimore, 	with a number of other
individuals and a duffle bag filled with currency, to engage in a narcotics purchase in
Arlington, 	were 	supported 	by 	independent police 	investigation , surveillance , and
information from a confidential source. It was also shown that Salmon likely possessed
the duffle bag used to transport the money at the Renaissance Hotel. The information
provided to the issu i ng magistrate judge, considered in its totality and in a common
sense and practical manner, provided a fair probability or substantial basis to believe
that evidence of criminality, namely drug trafficking, would be found in Room 10119 of
the Renaissance Hotel on July 23, 2020.
Good Faith
For the reasons just stated , the Court finds that the GPS tracker warrant, the
warrant authorizing the search of 3659 Packard Road and 327 Hyde Park Boulevard,
and the warrant authorizing the search of the Renaissance Hotel room on July 23, 2020
were all supported by probable cause. But even if this was not the case , the Court still
would not recommend suppression of evidence here. "Evidence seized pursuant to a
warrant for which actual probable cause does not exist or which is technically deficient
is admissible if the executing officers relied on the warrant in 'objective good faith."'
25
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United States v. Cance/mo, 64 F.3d 804, 807 (2d Cir. 1995); quoting United States v.
Leon, 468 U.S. 897, 923 (1984). As a result, "[s]earches pursuant to a warrant will
rarely 	require 	any deep 	inquiry 	into 	reasonableness, 	for a warrant issued 	by a
magistrate normally suffices to establish that a law enforcement officer has acted in
good faith in conducting the search." Leon, 468 U.S. at 922.
There are four circumstances in which the good faith exception does not apply:
(1) where the issuing judge has been knowingly misled; (2) where the issuing judge
wholly abandoned his or her judicial role; (3) where the application is so lacking in
indicia of probable cause as to render reliance on it unreasonable; and (4) where the
warrant is so facially deficient that reliance upon it is unreasonable. United States v.
Falso, 544 F.3d 110, 125 (2d Cir. 2008). None of these circumstances apply here. And
specifically with 	regard to the warrant for Salmon's 	residence and 	business, 	SA
Middlebrooks expressly acknowledged that (1) much of the information with regard to
Salmon was historical and (2) law enforcement did not have direct evidence that
narcotics 	or other contraband 	was 	stored 	at 	Salmon's 	residence 	or 	automotive
business. The affidavit went on to explain, in great detail and as discussed fully above,
why probable cause still existed . Moreover, the Court has concluded, contrary to
defendant's claim, that the application to search Salmon's home and business did not
contain any false or misleading statements that were material to the probable cause
determination .
Apple, Inc. Order
On December 1, 2023, the Government submitted an application, pursuant to
18 U.S.C. § 2703(d), requesting that the Court issue an order requiring Apple, Inc. to
26
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identify records associated with cell phones 716-534-2460 and 716-550-9794 . (See
23-MJ-520, Dkt. No . 1) The Government also requested records associated with the
email address Rashawnsalmon@gmail.com . (Id.) The application was granted and an
order issued by the Honorable H. Kenneth Schroder, Jr. on December 1, 2023 (the
"Apple Order"). The records and information to be disclosed pursuant to the Apple
Order included 	all Apple 	IDs associated 	with 	the telephone 	numbers and 	email
account, 	records 	identifying 	app 	store 	purchases, 	records 	of user 	activity, 	and
information 	as 	to 	whether the 	user 	backs 	up 	data, 	including 	photographs 	and
communications, to the Apple iCloud. (Id.) The Apple Order noted that the information
sought "did not include[e] the contents of the communication." (Id.) (emphasis in
original). Defendant now moves to suppress any records recovered pursuant to the
Apple Order on the grounds that the Government failed to present sufficient facts
showing that the information sought was relevant to the criminal investigation.
The Apple Order was 	issued 	pursuant to the Stored Communications Act
("SCA"), which establishes a procedure by which the Government may obtain access
to customer communications and records from electronic service providers . See 18
U.S.C. § 2703. It does not appear that the SCA provides for a suppression remedy.
See United States v. 	Ferguson, 	508 	F. 	Supp. 2d 7, 	10 (D.D.C. 	2007) 	(denying
defendant's motion to suppress because, inter alia, the SCA does not provide for a
suppression remedy) ; State v. Issac, 229 So. 3d 1030 (5th Cir. 2017) (noting that the
SCA offers no suppression remedy for criminal defendants) .
And even if such a remedy does exist, there is no basis for suppression here.
Non-content orders pursuant to Section 2703(d), such as the instant Apple Order, "shall
27
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issue only if the governmental entity offers specific and articulable facts showing that
there are reasonable grounds to believe that. .. the records or other information sought[]
are relevant and material to an ongoing investigation." 18 U.S.C. § 2703(d). This
standard is less stringent than the probable cause standard generally required for a
search warrant. 	United States v. 	Hay, 	19-CR-170, 2024 U.S. 	Dist. 	LEXIS 73177
(W.D.N.Y. Feb. 23, 2024); United States v. Taylor, 54 F.4th 795, 804 (4th Cir. 2022).
Here, the Apple Order application (1) set forth information obtained from confidential
sources explaining Salmon's involvement in drug trafficking activities; (2) explained
how law enforcement connected the subject telephone numbers and email address to
Salmon; and (3) explained why the information sought was relevant and material to the
Government's investigation. Thus, the parameters of Section 2703(d) were satisfied
and Salmon's request to suppress information obtained based upon the Apple Order
should be denied. 14
Motion to Dismiss Count 5
Count 5 of the Indictment alleges that, between on or about July 21, 2020 and
on or about July 23, 2020, Salmon possessed a firearm in furtherance of a drug
trafficking crime . Defendant submits that, according to information provided by the
Government, Count 5 is based upon the recovery of a firearm in the Renaissance Hotel
14 Defendant cites United States v. Warshak, 631 F. 3d 266 (6th Cir. 2010), in support of his challenge
to the Apple Order. In that case, defendant moved to suppress evidence from the content of his email
communications that were obtained pursuant to the SCA and not a warrant. Warshak is distinguishable
because the Apple Order here specifically excluded the content of defendant's email or telephonic
communications. See In re Grand Jury Subpoena to Google, LLC, 2019 U. S. Dist. LEXIS 226601, *6-7
(S.D .N.Y. June 3, 2019) (noting that where the Government seeks content information about a
communication, the government is required to obtain a warrant based on a showing of probable cause
but "where the Government seeks non-content records, as it does here, paragraph (c) [of the SCA]
controls) (emphasis in original) . In Carpenter v. United States, 138 S. Ct. 2206 (2018), the Supreme
Court held that law enforcement must obtain a warrant to obtain historical cellular site location
information. The Apple Order at issue here did not seek any cellular site location information.
28
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room rented by Salmon on July 23, 2020, the day after the reverse controlled buy took
place in Arlington, Virginia. Defendant notes that the Renaissance Hotel in Baltimore,
where the firearm was recovered, is an hour drive from the hotel in Arlington , where
the reverse drug buy occurred . Defendant submits that Count 5 is invalid because a
firearm stored in Baltimore could not have been used in furtherance of a narcotics
transaction in Arlington .
A pretrial motion to dismiss an indictment must satisfy a high standard . United
States v. Lazare , 90 F. Supp. 2d 202, 203 (N.D.N.Y. 2000). In deciding a motion to
dismiss an indictment for fa ilure to state a criminal offense, "a court must assume the
truth of the allegations in the indictment and determine whether the indictment is valid
on its face ." United States v. 	Larson, 07 - CR -304, 2011 	U. S. 	Dist. LEXIS 139357,
(W.D.N.Y. Dec. 5, 	2011 ); Costello v. United States, 350 U.S. 359, 363 (1956) . An
indictment is sufficient if it contains the elements of the offense charged and fairly
informs a defendant of the charge against which he must defend. United States v.
Walsh, 194 F.3d 37, 44 (2d Cir. 1999). Likewise, Rule 7(c) of the Federal Rules of
Criminal Procedure requires that an indictment contain a "plain, concise and definite
written statement of the essential facts constituting the offense charged. " See Fed. R.
Crim. P. 7(c). In evaluating the facial sufficiency of an indictment, the court must not
"look[ ] beyond the face of the indictment and dr[aw] inferences as to the proof that
would be introduced by the government at trial." United States v. Alfonso, 143 F.3d 772 ,
776 (2d Cir. 1998).
Count 5 of the Indictment alleges that Salmon violated Section 924(c)(1 )(A)(i) of
Title 18 of the United States Code, which provides, in pertinent part, that "any person
29
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who, ... in furtherance of [a drug trafficking crime], possesses a firearm, shall be [guilty
of a crime." Count 5 contains the elements of the offense; the nature of the accusations;
and the date and place of the alleged criminal conduct. (Dkt. No. 50, pg. 4) These
allegations comply with Rule 7(c). They are also sufficient to inform defendant of the
nature of the charge against him and to enable him to plead double jeopardy in a future
prosecution based on the same set of facts .
Defendant contends that because the firearm was found in Baltimore and the
reverse 	buy 	occurred 	in 	Arlington, 	the 	Government 	is 	unable to 	prove 	that 	he
possessed a firearm in furtherance of drug trafficking. 	These objections amount to a
challenge 	of the 	sufficiency 	of 	the 	Government's 	evidence 	against 	him. 	While
defendant may be able to successfully raise these arguments at the time of trial, they
are premature and an insufficient basis for dismissal of Count 5. See, e.g., United
States v. Perez, 575 F.3d 164, 166-67 (2d Cir. 2009) ("Unless the government has
made what can fairly be described as a full proffer of the evidence it intends to present
at trial . .. the sufficiency of the evidence is not appropriately addressed on a pretrial
motion to dismiss an indictment."); United States v. Elie, 10 Cr. 336, 2012 U.S. Dist.
LEXIS 15119 (S .D.N.Y. Feb. 7, 2012) ("[A] pretrial motion to dismiss an indictment is
not 	a 	permissible 	vehicle 	for 	addressing 	the 	sufficiency 	of 	the 	government's
evidence."). Thus, the Court recommends that defendant's motion to dismiss Count 5
be denied.
30
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OMNIBUS DISCOVERY DEMANDS
Rule 16 Discoverv
Defendant moves for discovery and inspection pursuant to Federal Rule of
Criminal 	Procedure 	16 . Rule 	16(a) 	requires 	the 	Government to 	disclose 	certain
evidence and information upon request of a defendant. While Rule 16 was intended to
provide for liberal discovery, a defendant is not entitled to discovery of "the entirety of
the Government's case against him." United States v. Percevault, 490 F.2d 126, 130
(2d Cir. 1974). Rule 16 provides that a defendant is entitled to the following: (1) a
defendant's written, recorded, or oral statements in the possession of the Government;
(2) the defendant's prior record; (3) documents, objects, books , papers, photographs,
etc. that will be used during the Government's case-in-chief; (4) reports of examinations
or tests; (5) and information about expert witnesses in accordance with Fed. R. Evid.
702, 703 and 705. See Fed R. Crim . P. 16(a)(1). Rule 16 specifically exempts from
disclosure "reports, memorandum, or other internal Government documents made by
an 	attorney for the 	Government or other Government agent in 	connection 	with
investigating or prosecuting the case." See Fed . R. Crim. P. 16(a)(2).
Here, the Government represents that it has provided voluminous discovery to
defendant, and that it has complied with all of its requirements pursuant to Rule 16.
The discovery provided includes, inter a/ia, copies of search warrants; pen register and
trap and trace applications as well as the data collected; data seized from electronic
devices; results from grand jury subpoenas; search reports and photographs from
execution of warrants; pole camera footage; sear ch warrants , reports, and/or video
footage 	from 	Baltimore 	and 	Arlington 	hotels 	in 	July 	2020; 	laboratory 	reports;
31
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information regarding cocaine seized from a postal package in February 2019; police
reports regarding traffic stops; evidence regarding a drug seizure in Kansas City; cell
phone extractions; DEA reports; social media returns; administrative subpoena returns;
and laboratory reports as to any substances seized in the course of the investigation.
The Government further submits that it has identified the forensic chemists who
analyzed the substances found at Salmon's business as well as the chemists the
Government intends to rely on at trial. The Government has also identified the chemist
who will testify at trial regarding the comparison of Salmon's DNA to the DNA found on
a firearm seized from the Renaissance Hotel. The Government has provided defendant
with a copy of Agent Middlebrooks' report detailing his interview with Salmon on August
28, 2024. Consensual recordings of Salmon were made available to defense counsel
and defense counsel has reviewed those recordings. The Government notes that it
previously provided Salmon a copy of his criminal history as part of a bail report in
September 2024, and that it will obtain another recent copy and provide it to defense
counsel. The Government further submits that all cooperating witnesses who identified
Salmon by photograph had previous personal knowledge of, and interactions with,
Salmon. Finally, the Government indicates that should it identify any other evidence
that falls under Rule 16, it will provide such evidence to defense counsel.
Based upon the representations made by the Government, defendant's request
for discovery pursuant to Rule 16 is denied as moot. The Government is reminded that
its disclosure obligations pursuant to Rule 16 and its notice obligations pursuant to Rule
12 continue up through and during trial. See Fed. R. Crim. P. 16(c) and 12(b)(4)(A).
Finally, the Government is expected to comply with all requirements in Rule 16, Federal
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Rules of Evidence 702, 703, and 704, and Judge Sinatra's pretrial order as they apply
to expert testimony.
Identification of Witnesses and Confidential Informants
Defendant requests the 	disclosure of the 	identity and 	whereabouts 	of all
confidential informants, as well as any relevant impeachment information as to these
individuals and reports of their statements, regardless of whether they will be called as
witnesses at trial. Defendant also seeks pretrial access to Government witnesses.
The Government has no general duty to disclose the identities of its witnesses
before trial. United States v. Bejasa, 904 F.2d 137, 139 (2d Cir. 199). Moreover, the
Second Circuit has held that "in the absence of a specific showing that disclosure [of a
witness list] was both material to the preparation of [the] defense and reasonable in
light of the circumstances surrounding [the] case," the request for a pretrial witness list
should be denied. Id. at 130-40. Defendant here has failed to make a particularized
showing of need for early disclosure of the Government's witness list. 15
In addition, the Government has a qualified privilege to withhold information
concerning the names of confidential informants that it does not intend to call as
witnesses. See Rovario v. United States, 353 U.S. 53, 60-62 (1957) (the purpose of
the privilege is to encourage citizens to 	report criminal activity). The informant's
privilege must give way, however, if disclosure is essential to a defense or the fair
determination of the case. United States v. Lilla, 699 F.2d 99, 105 (2d Cir. 1983). To
that end, a defendant seeking the identity of a confidential informant must make some
15 The practice in this District is for the Government to provide its witness list prior to trial. Thus, it is
expected that the Government will comply with Judge Sinatra's pretrial order regarding the disclosure
of witness and exhibit lists.
33
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evidentiary showing as to why disclosure is significant to determining defendant's guilt
or innocence. 	See United States v. 	Jimenez, 	789 	F.2d 	167, 	170 (2d 	Cir. 	1986)
(explaining that defendants face a "heavy burden" of establishing that disclosure is
essential to the defense); Lilla, 699 F.2d at 105 ("this requires some demonstration that
in the absence of such disclosure the defendant will be denied a fair trial"); United
States v. Valenzuela-Bernal, 458 U.S. 858, 871 (1982) (defendant need not show that
the informant's testimony would actually be helpful to the defense, but instead "the
events to which a witness might testify, and the relevance of those events to the crime
charged").
Defendant here has not met his heavy burden with respect to early disclosure
of informant identities, report, statements, or impeachment material. While he generally
indicates that informants may possess exculpatory or otherwise helpful information, he
does not offer examples of specific testimony or information these informants might
provide, nor does he explain how such a disclosure is necessary or material to his
defense. If and when the informants are to be called as witnesses at trial, defendant
will have access to their identities as well as all relevant impeachment material, prior
statements, 	and 	notes 	of their 	interviews. 	In 	addition, 	if the 	informants 	reveal
exculpatory information at any time, the Government has an ongoing duty to disclose
this information in time for its effective use at trial. 16 Thus, defendant's motion for
16 In addition, Salmon is alleged to be a high-level and long-standing narcotics trafficker. There is
evidence in the record that he possessed a firearm in Baltimore, Maryland in July 2020. And during the
search of Salmon's residence, law enforcement found body armor and writings by Salmon describing
violence against people who would cooperate against him. (0kt. No. 5; 0kt. No . 33, pg. 17; 24-MJ-496,
pgs. 18-20) A protective order is currently in place to protect the identity of cooperating sources. Thus,
the Court also recognizes safety concerns with regard to the requested disclosures.
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pretrial access to Government witnesses and disclosure of informant information is
denied. 17
Brady/Giglio Material
Defendant 	moves 	for 	the 	disclosure 	of 	any 	favorable, 	exculpatory 	or
impeachment materials pursuant to Brady, Giglio, and their progeny.
The Government has an obligation to disclose exculpatory material, or material
favorable to an accused as to either guilt or punishment, even when no affirmative
request has been made. Brady v. Maryland, 373 U.S. 83, 87 (1963). Material "favorable
to an accused" includes not only evidence that affirmatively tends to exculpate the
defendant, 	but 	also 	information 	that 	impeaches 	the 	credibility 	of 	Government
witnesses. See Giglio v. 	United States, 405 U.S. 150, 154-55 (1972). The test for
materiality is whether "there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different."
United States v. Bagley, 473 U.S. 667, 682 (1985). Evidence may be material for Brady
purposes even if it is not admissible, as long as it could lead to the discovery of
admissible evidence. United States v. Gill, 297 F.3d 93, 104 (2d Cir. 2002).
Here, 	the 	Government states that 	it 	is 	fully 	aware 	of its 	obligations 	and
responsibilities under Brady and acknowledges its continuing duty under Brady to
produce such material, if and when it becomes aware of it. The Government agrees to
provide Giglio and 3500 material prior to trial, in accordance with the District Court's
17 Defendant requests that should the Court deny his request, the Court conduct an in camera review
of informant statements. Because the Court finds that defendant is not entitled to the information in
those reports or statements at this time, it declines to conduct any such review.
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scheduling order, and no later than when the Government produces and delivers the
Jencks Act material in this case.
Defendant 	also 	requests, 	under the 	guise 	of Brady, 	specific 	information
regarding: (1) the August 2019 arrest of Robbie Johnson in Kansas City, Missouri; and
(2) the July 2020 reverse drug buy, in Arlington, Virginia, involving Kinnard Turner and
Korey Cornish. It is undisputed that these incidents resulted in the prosecutions and
convictions of Johnson, Turner, and Cornish in other districts. It is further undisputed
that Salmon was never charged with regard to either of those incidents in those other
districts. Defendant submits that because Salmon was never charged, investigatory
materials from those cases must necessarily include exculpatory information as to
Salmon. 	Defendant further submits that because the Government will rely on the
August 2019 arrest of Johnson and the July 2020 reverse buy in this case, defendant
is entitled to that information for use here. 18
Thus, 	defendant requests 	(1) 	the 	substance 	of any 	statements 	made 	by
Johnson, Turner, 	or Cornish, 	before or after their arrests, that may indicate that
someone other than Salmon bought, sold, or possessed the narcotics at issue; (2) any
offers of leniency made to Johnson, Turner, or Cornish in exchange for providing
information regarding Salmon; and (3) any lab reports, law enforcement memorandum,
grand jury transcripts, testimony, or any other material that may indicate that someone
other than Salmon bought, sold, or possessed the narcotics at issue.
18 Defendant submits that the Government will assert the 2020 reverse buy as an overt act in support
of the narcotics conspiracy charged here, and that Salmon's alleged possession of a firearm in the
course of that buy is the basis of Count 5 of the Indictment. Johnson was arrested on August 9, 2019
in Kansas City, Missouri and found to be in possession of five kilograms of cocaine. According to the
Government's previous proffers in this case, this cocaine was destined for Salmon . In addition, the
Government has proffered that Johnson's federal court paperwork was found in Salmon's residence
and that Salmon paid a Buffalo attorney to represent Johnson in Kansas City.
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Defendant argues that by "adopting" the August 2019 Johnson arrest and the
July 2020 reverse buy in this case, those investigations became an "arm of the
prosecution" here, thereby creating an obligation on the part of the Government to
"thoroughly investigate and disclose material from those investigations." A prosecutor's
duty to 	review 	files 	for 	Brady material 	extends 	to 	reviewing 	information 	in 	the
possession, custody, or control of another agency where the Government conducts a
"joint investigation" with that agency. United States v. Carroll, 19 CR 545, 2020 U.S.
Dist. LEXIS 65346 (S.D.N.Y. Apr. 14, 2020). In determining whether the prosecution
conducted a joint investigation, courts in this Circuit consider whether the other agency
"(1) participated in the prosecution's witness interviews, (2) was involved in presenting
the case to the grand jury, (3) reviewed documents gathered by or shared documents
with the prosecution, (4) played a role in the development of prosecutorial strategy, or
(5) accompanied the prosecution to court proceedings." United States v. Middendorf,
18-CR-36, 2018 U.S. Dist. LEXIS 139980 (S.D.N.Y. Aug. 17, 2018). Here, there is no
evidence in the record that the offices or agencies that investigated and prosecuted
Johnson, Turner, and/or Cornish have acted or are acting jointly with the Government
in the investigation or prosecution of Salmon here in the Western District of New York.
And even if that was the case, the record here shows that the Government has
disclosed relevant and arguably exculpatory information from those investigations to
defense counsel. 	The Government provided 	defendant with 	a Kansas 	City DEA
redacted summary of an interview Robbie Johnson gave to agents on August 9, 2019,
following his arrest for the possession and transportation of five kilograms of cocaine.
The summary indicates that Johnson did not implicate Salmon in the transportation of
37
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cocaine, but instead told agents that three unknown men abducted him, threatened
him, and forced him to transport the cocaine from San Diego, California to Niagara
Falls, New York. The Government has also provided defense counsel with a redacted
Washington, DC DEA report of investigation, prepared on July 30, 2020, which details
the arrest of Turner and the detention of Turner, Lightfoot, Cornish, and Salmon. The
report indicates that Turner, Salmon, Cornish, and Lightfoot were all interviewed and
all declined to provide any substantive information about the reverse buy. Also with
• 	regard to the 2020 reverse buy, Salmon has been provided with consensual recordings
regarding Turner, investigative materials, surveillance notes, search warrant affidavits,
hotel surveillance footage, and other documents. 19
Brady does 	not "require the 	government to 	do defense 	counsel's 	pretrial
preparation, nor develop defense strategy, nor does it require the government to point
out the obvious." United States v. Larson, 567 F. Supp. 500, 503 (S.D.N .Y. 1993).
Moreover, "[t]he purpose of the Brady rule is not to provide defendant with a complete
disclosure of all evidence in the government's file which might conceivably assist him
in the preparation of his defense, but to assure he will not be denied access to
exculpatory evidence known to the government but unknown to him." United States v.
Ruggerio, 472 F.2d 599, 604 (2d Cir. 1973). See also United States v. Agurs, 427 U.S.
97, 109 (1976) ("no constitutional requirement that the prosecution make a complete
and detailed accounting to the defense of all police investigatory work on a case").
19 The Government indicates that while the DEA report indicates that Johnson 's interview was
recorded, the Kansas City DEA was unable to locate the recording. (Dkt. No. 66 , pg . 2, n. 5) In
addition, the Government has indicated to defense counsel that it does not believe a recording of the
interviews regarding the reverse buy exist. (Dkt. No . 69 , pg . 3) Thus , defendant's request for recorded
statements appears to be moot.
38
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Information is not exculpatory just because it is not affirmatively incriminating.
See United States v. Scarpa, 913 F.2d 993, 1010-1 (2d Cir. 1990); United States v.
Wilson , 	15-CR-142, 	2017 	U.S. 	Dist. 	LEXIS 	62527 	(W.D.N.Y. 	April 	24, 	2017).
Nevertheless, defendant has been provided with information and reports of statements
tending to show that Johnson did not implicate Salmon with regard to the August 2019
transportation of cocaine , and instead claimed that he was kidnapped by unknown men
and forced to act as a drug mule. 20 Defendant has also been provided with information
and reports of statements tending to show that, during interviews following their arrests,
none of the individuals present for the 2020 reve rse buy implicated him in the narcotics
transaction. Defendant knows the identity of the other individuals involved , and has
been provided with significant discovery as to both incidents. These disclosures are
sufficient to 	allow defense counsel to 	conduct its own 	investigation 	and witness
interviews as well as to argue at trial, if appropriate, that Salmon was not implicated by
any of his purported co-conspirators in either the August 2019 or July 2020 acts. 21 See
United States v. Stewarl, 513 F.2d 957, 600 (2d Cir. 1975) (the government was not
required to disclose grand jury testimony to a defendant who " is on notice of the
essential facts which would enable him to call the witness and thus take advantage of
any 	exculpatory 	testimony 	that 	he 	might 	furnish") . 	Indeed, 	Brady 	requires 	the
prosecutor neither "to deliver his entire file to defense counsel," United States v.
20 The transcript of Johnson's detention and sentencing hearing is also publicly available. ( See State v.
Johnson , 19-CR-276 (W. D. Missouri), at Dkt. Nos. 50, 90) These transcripts are apparently consistent
with Johsnon's post-arrest interview, including his statement about being forced to act as a drug mule
through threats of violence. The Government notes that defendant has also been provided with video
from the San Diego Westin Hotel showing defendant and Johnson checking into the hotel on August 7,
2019, two days before Johnson was arrested in Kansas City with the five kilograms of cocai ne .
21 Defense counsel is also able to interview the witnesses and/or purported co-conspirators in an
attempt to determine if, at any time, they implicated others in the crimes or if they have specific
information tending to exculpate Salmon .
39
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Bagley, 473 U.S. 667, 675 (1985), nor to make a disclosure if "the defendant knew or
should 	have known the essential facts 	permitting 	him to take advantage of any
exculpatory evidence." United States v. Gaggi, 811 F.2d 47, 59 (2d Cir. 1987).
Defendant contends that further disclosure of the investigatory materials and
grand jury documents from the August 2019 arrest and July 2020 reverse buy are
necessary because prosecutors in those other districts elected not to charge Salmon.
But this argument misses the mark. The fact that Salmon was not charged in those
prosecutions 	is both 	public record 	and 	known to the defense. Thus, 	should the
Government introduce evidence of these incidents at Salmon's trial, defense counsel
can argue that the failure to charge Salmon, at the time of the incidents, tends to show
that he was not guilty of the alleged conduct, or that the government's case against
him was not strong. Finally, should Johnson, Turner, or Cornish be called as witnesses
against defendant at the time of trial, defendant would be entitled to any relevant
impeachment information, including promises of leniency, at that time. See United
States v. Nixon, 418 U.S. 683, 701 (974) ("Evidence which is not exculpatory, but is
relevant for the purposes of impeachment, must be produced to the defense, but need
not be turned over in advance of trial.").
Given 	the 	Government's 	representations 	and 	for the 	reasons just stated,
defendant's motion to compel the production of Brady/Giglio material is denied as
moot. The Government is reminded of its continuing Brady obligations and, consistent
with Coppa, the Government shall timely disclose any Brady and Giglio material to
defendant. See United States v. Padovani, 14 -CR-00224, 2016 WL 5402696, at *4
(W.D.N.Y. Sept. 28, 2016).
40
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Bill of Particulars
Defendant moves for a bill of particulars pursuant to Rule 7(f) of the Federal
Rules of Criminal Procedure. 	Defendant seeks, inter a/ia, 	a list of unindicted co-
conspirators; the specific times, dates, and locations where he and the other co-
conspirators combined and agreed to possess the controlled substances ; details as to
when the various individuals joined and left the conspiracy; a list of all of the overt acts ;
the exact weight of the controlled substances; and a list of people present when the
overt acts took place , as well as whether they were acting on behalf of the Government.
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 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 (S.D.N .Y. 1983). 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). Further, a defendant is not generally entitled to receive details of the
41
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government's conspiracy allegations through a bill of particulars. 	United States v.
Wilson, 493 F. Supp. 2d 364, 372 (E.D.N.Y. 2006) .
The charges here are neither complex nor difficult to understand . The Indictment
provides substantial information about the case including the alleged length of the
conspiracy, the types of drugs involved, and the approximate drug weights. Defendant
has 	been 	provided 	extensive 	discovery, 	as 	described 	above . 	In 	addition, 	the
Government 	notes that the 	discovery 	provided 	has supplied 	defendant with 	the
identities of at least some of the un-indicted co-conspirators . The information provided
in 	the 	Indictment, 	coupled 	with 	the 	voluminous 	discovery 	already 	provided 	to
defendant, is sufficient to inform defendant of the charges against him, prepare a
defense, avoid surprise at trial, and ensure against double jeopardy.
The additional details sought by defendant amount to an attempt to use a bill of
particulars as a discovery device. See e.g., United States v. Biaggi, 675 F. Supp. 790,
809 (S.D.N.Y. 1987) (defendants request for "each alleged date, time, person present,
place, nature of conversation [and] amount" is an "impermissible attempt to compel the
Government to provide evidentiary details of its case ."); United States v. Barret, 824 F.
Supp. 2d 419, 439 (E.D .N.Y. 2011) (the nature of the wheres, when and with whams
of a conspiracy are frequently held to be beyond the scope of a bill of particulars since
the government "is not required to prove exactly when or how a conspiracy formed or
when or how a particular defendant joined the scheme"); United States v. Walker, 922
F Supp. 732, 739 (N.D.N .Y. 1996) (overt acts in furtherance of a conspiracy need not
be disclosed) ; United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990) (finding that
the district court acted well within its discretion denying defendant's request for a bill of
42
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particulars specifying when he joined the conspiracy, the identity of unindicted co-
conspirators, and the precise dates and locations he was alleged to have transported
heroin). For these reasons, defendant's request for a bill of particulars is denied.
Motion for Jencks Disclosure
Defendant seeks an order requiring disclosure of Jencks material at least 60
days prior to trial.
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 ("Jencks material"). 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 indicates that it will produce its witness list and all 3500
material two weeks prior to trial, and in accordance with the District Court's pretrial
scheduling order. In light of these representations, defendant's request for disclosure
of Jencks Act and 3500 material is denied as moot.
43
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Disclosure of 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).
Defendant also moves for pretrial disclosure of impeachment evidence pursuant to
Federal Rules of Evidence 608 and 609 .
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). Here, the Government represents that it will
provide notice of Rule 404(b) and impeachment evidence to defendant in advance of
trial, pursuant to the District Court's pretrial order. Thus, defendant's request is denied
as moot. The issue of admissibility of evidence pursuant to Federal Rules of Evidence
404(b), 608, and 609 is left to the determination of Judge Sinatra at the time of trial.
Request to Test Firearm, Ammunition, and ONA Evidence
Defendant requests an order permitting him to test the firearm recovered from
the 	Renaissance 	Hotel 	room 	on 	July 	23, 	2020, 	as 	well 	as 	any 	corresponding
ammunition or DNA. The Government responds that it has reached out to defense
counsel to discuss and facilitate the request. Thus, this motion appears to be moot.
The Court directs the parties to continue to work together to facilitate defense counsel's
request for firearm , ammunition, and DNA testing.
Leave to File Further Motions
Defendant moves to reserve the right to make further motions as necessary. To
the extent defendant intends to bring motions based upon new information or evidence
that has not yet been disclosed, his request for leave to file additional motions is
44
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granted. To the extent defendant intends to bring motions concerning issues that could
have been raised prior to the previous motion deadline, defendant's request is denied
without prejudice to bring the motion upon a showing of good cause for the untimely
filing .
Government's Motion for Reciprocal Discovery
The Government moves for reciprocal discovery pursuant to Rule 16(b) of the
Federal Rules of Criminal Procedure including the opportunity to inspect, copy or
photograph books , papers, documents, photographs, tangible objects or copies or
portions thereof which are in the possession , custody or control of defendant and which
defendant intends to introduce as evidence at trial; the results or reports of any physical
or mental examinations and/or scientific tests or experiments made in connection with
the case; and advance disclosure of any statements defendant proposes to use at trial
pursuant to Rule 807 of the Federal Rules of Evidence. The Government's motion for
reciprocal 	discovery 	is 	granted, 	and 	defendant 	is 	reminded 	that 	his 	disclosure
obligations continue up through and during trial. See Fed . R. Crim . P. 16(c).
CONCLUSION
For 	the 	foregoing 	reasons, 	it 	is 	recommended 	that 	defendant 	Rashawn
Salmon's motions to suppress evidence and the dismiss Count 5 of the Indictment be
denied . (0kt. Nos. 29, 60) It is ordered that defendant Rashawn Salmon's omnibus
discovery 	demands 	are 	decided 	in 	the 	manner 	detailed 	above 	and 	that 	the
Government's request for reciprocal discovery is granted .
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.
45
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Unless 	otherwise 	ordered 	by 	Judge 	Sinatra, 	any 	objections 	to 	the
recommendation portion of this Report, Recommendation and Order must be filed with
the Clerk of Court within fourteen days of service of this Report and Recommendation
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. 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 authority." 	Failure to comply with these
provisions may result in the District Court's refusal to consider the objection.
50 ORDERED.
Dated: 	November 3, 2025
Buffalo, New York
46
~J ,	~MHAELJ . 	EMER 	-
United States Magistrate Judge
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