United States v. Rivera (89 F. Supp. 3d 376, 2015)

MEMORANDUM AND ORDER

MATSUMOTO, District Judge:

In a third Superseding Indictment, defendants h^ichael Garrett (“Mr. Garrett”) and Paul Rivera (“Mr. Rivera”) (collectively, “defendants”) are charged with racketeering (Count I), racketeering conspiracy (Count II), interstate prostitution (Count III), conspiracy to engage in sex trafficking and sex trafficking of children (Count IV), sex trafficking and sex trafficking of children (Count V), conspiracy to distribute and possess with intent to distribute heroin, cocaine base, cocaine and marijuana (Count VI), possession with intent to distribute heroin and cocaine (Count VII), conspiracy to commit murder in-aid-of racketeering (Count IX), murder in-aid-of racketeering (Count X), murder while engaged in a narcotics trafficking offense (Count XI), using, carrying and possessing a firearm (Count XIV), and causing death through use of a firearm (Count XV). (Superseding Indictment (S-3) (“Indictment”), ECF No. 94.) Mr. Garrett also is charged with money laundering (Count VIII), and Mr. Rivera is charged with witness tampering (Count XII) and attempted obstruction of justice (Count XIII). (Id.)

These charges arise from the defendants’ alleged involvement in a group known as “Together Forever” or “TF Mafia” that operated in the neighborhood of Brownsville in Brooklyn, New York as well as in Scranton, Pennsylvania. (Id. at 2.) The indictment alleges that defendants were both leaders of TF Mafia. (Id.)

After Mr. Rivera was stopped on January 18, 2012 by the Pennsylvania State Police (“PSP”) and a police search of the vehicle yielded quantities of cocaine and heroin (see Gov.’s Memo, of Law in Resp. to Defs. Paul Rivera and Michael Garrett’s Mots, to Suppress and Garrett’s Initial Pre-Trial Mots. (“Opp.”) filed 7/8/14, ECF No. 117, at 3-4; Compl. filed 2/5/13, ECF No. 1), Mr. Rivera was charged with several felony violations of Pennsylvania law and was incarcerated in Pennsylvania pending trial. (Opp. at 4.) The, defendants thereafter came to the attention of the Federal Bureau of Investigation (“FBI”). (Opp. at 3.) On February 5, 2013, the Honorable Ramon E. Reyes, Jr., United States Magistrate Judge for the Eastern District of New York, issued an arrest warrant for Mr. Rivera based on a complaint charging him with conspiracy to distribute one or more controlled substances in violation of 21 U.S.C. § 846. (Compl.) Mr. Rivera was subsequently removed to federal custody. On March 11, 2013, a federal grand jury returned an indictment charging Mr. Rivera with conspiring to distribute one or more controlled substances in violation of 21 U.S.C. § 846. (Indictment as to Paul Rivera filed 3/11/2013, ECF No. 11.)

On June 24, 2013, defendants were charged together in a superseding indictment alleging a conspiracy to distribute one or more controlled substances and possession of cocaine and heroin with the intent to distribute. (Superseding Indictment filed 6/24/13, ECF No. 31.) On October 7, 2013, the grand jury returned a second superseding indictment that brought numerous charges against defendants, including racketeering conspiracy and racketeering, with specified predicate acts of narcotics trafficking, sex trafficking, money laundering, witness tampering, and murder. (Superseding Indictment (S-2) filed 10/7/13, ECF No. 62.) On April 28, 2014, the grand jury returned the current third superseding indictment (S-3).

Presently before the court are the following pre-trial motions filed by defendants.

Mr. GaiTett’s Motions

Mr. Garrett moves to (a) suppress physical evidence recovered from a September 1, 2010 car stop, (b) suppress Mr. Garrett’s post-arrest statements after his arrest in this case on June 12, 2013, (c) direct the to government disclose all evidence favorable to Mr. Garrett pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), (d) direct the government to disclose any prior bad acts or criminal convictions that the government intends to use at trial pursuant to Federal Rules of Evidence 404(b), (e) grant Mr. Garrett’s request for a bill of particulars, (f) permit Mr. Garrett to bring further motions upon the basis of any newly discovered information, and (g) permit Mr. Garrett to join in the motions of his co-defendant as appropriate. (Memo, of Law in- Support of Def.’s Pretrial Mots. (“Garrett Mots.”) filed 6/9/14, ECF No. 110.)

Mr. Rivera’s Motions

Mr. Rivera moves to (a) suppress physical evidence recovered pursuant to a search of a vehicle search on January 18, 2012, and (b) suppress Mr. Rivera’s statements made to the government during a proffer session dated August 30, 2012. (Rivera Mots, filed 6/10/14, ECF No. 113.)

DISCUSSION

I. Mr. Garrett’s Motions

A. Motion to Suppress Physical Evidence from Mr. Garrett’s September 1, 2010 Car Stop and Arrest

Mr. Garrett moves to suppress evidence seized from his car when he was stopped on September 1, 2010 by a New Jersey State Police (“NJSP”) trooper for alleged traffic violations on the grounds that the stop was without probable cause, and the search that yielded the contraband was unlawful, because it was conducted without Mr. Garrett’s consent and without probable cause. {See Garrett Mots, at 1-2.) The government argues that the stop of Mr. Garrett’s vehicle was based on probable cause, because Mr. Garrett violated New Jersey traffic laws, the subsequent search of a package found in the trunk of the Garrett Vehicle was lawful, because Mr. Garrett lacked standing to challenge it, the search was supported by probable cause, and the contraband inevitably would have been discovered. {See Opp. at 46-51.)

On September 8, 2014, September 9, 2014, and October 29, 2014, the court held an evidentiary hearing addressing Mr. Garrett’s and Mr. Rivera’s motions to suppress evidence. Regarding Mr. Garrett’s September 1, 2010 car stop, the government presented Todd Unangst (“Mr. Un-angst”), the tow truck operator who towed Garrett’s car, NJSP Trooper Rivas (“Trooper Rivas”), who initiated the September 1, 2010 car stop, NJSP Detective Shotwell (“Detective Shotwell”), who assisted with the investigation, and NJSP Detective Torre (“Detective Torre”), who conducted an inventory search of Mr. Garrett’s car. Mr. Garrett did not present any witnesses and relied upon affirmations submitted in connection with his motion papers. {See Garrett Affirm, filed with Garrett Mots., ECF No. 110, at 3; Garrett Affirm, filed with Garrett Reply, ECF No. 123-1.) Mr. Garrett and the government filed post-hearing submissions with the court. {See Garrett’s PosL-Hr’g Memo, in Supp. of Garrett’s Mot. to Suppress (“Garrett Post-Hr’g Memo.”), ECF No. 147; Gov.’s Proposed Finding of Facts and Conclusions of Law following the Suppression Hr’g (“Gov. Post-Hr’g Memo.”), ECF No. 148.)

1. Factual Findings

During the evidentiary hearing, the witnesses for the government presented a credible and largely consistent account of Mr. Garrett’s car stop on September 1, 2010.

a. Testimony from the Government Witnesses

According to Trooper Rivas, whose testimony the court found credible, on September 1, 2010, he was on duty and assigned to the night shift at the NJSP station in Hope, New Jersey (“Hope Police Station”), which is located off of Exit 12 on Interstate 80 (“1-80”). (Tl at 144-45). At approximately 10:30 p.m., Trooper Rivas was patrolling 1-80 when he observed a black Mercedes with New York license plate EML 4151 (the “Garrett Vehicle”) traveling westbound in the left lane on I-80. (Id. at 145-48.) Trooper Rivas observed that the Garrett Vehicle was having difficulty maintaining its position driving in the left lane. (Id. at 146.) He then saw the Garrett Vehicle change from the left lane to the center lane without signaling. (Id.)

Trooper Rivas testified that failing to maintain a lane and changing lanes without using a directional signal are "violations of New Jersey state law and that, based on his observations of the traffic violations, he determined that he would stop the Garrett Vehicle. (Id. at 148, 155.) Trooper Rivas testified that he then turned on the lights on his police car and pulled the Garrett Vehicle over to the side of the road. (Id. at 221-22; see also Gov. Ex. DD at 22:30:22-22:30:51.) Trooper Rivas proceeded to have a conversation with Mr. Garrett, the driver and sole occupant of the Garrett Vehicle. (Tl at 15758). Trooper Rivas testified that he asked Mr. Garrett where he was going, to which Mr. Garrett responded that he was going to the Mohegan Sun casino to attend an event. (Id.) Trooper Rivas told Mr. Garrett that he was stopped because Mr. Garrett was having trouble maintaining his lane and switched lanes without using his directional signal. (Id.; see also Gov. Ex. DD at 22:31:30-22:34:15.) Trooper Rivas testified that Mr. Garrett was “very apologetic” and stated that there were problems with the air pressure in his tires which caused his vehicle to swerve. The MVR footage corroborates Trooper. Rivas’s testimony regarding Mr. Garrett’s admission to swerving. (T1 at 159; see also Gov. Ex. DD at 22:31:30-22:34:15.)

Trooper Rivas testified that he then advised Mr. Garrett that he was going to check his license and registration for traffic violations and asked if Mr. Garrett had any recent traffic violations. (T1 at 159-60; see also Gov. Ex. DD at 22:34:30-22:35:15.) Mr. Garrett responded that he had been stopped a few times in the past and had received a few traffic tickets, but that he should be in good standing. (Id.)

Trooper Rivas testified that after returning to his police vehicle and running Mr. Garrett’s license and registration, he learned that Mr. Garrett’s license had been suspended and that Mr. Garrett was not permitted to drive. (T1 at 160-61.) Trooper Rivas also learned that there was a traffic warrant for Mr. Garrett’s arrest in Knowlton Township, New Jersey. (Id.) Trooper Rivas testified that because Mr. Garrett was a suspended driver, Mr. Garrett was not permitted to operate a motor vehicle. (Id.) Trooper Rivas testified that in light of the fact that Mr. Garrett was a suspended driver and had a warrant for his arrest, he decided to place Mr. Garrett under arrest and to impound the vehicle. (Id.) In light of Mr. Garrett’s arrest, Trooper Rivas decided to have the Garrett Vehicle towed by a tow operator under contract with the NJSP to the operator’s private tow yard and impounded. (Id. at 161-62.)

While Trooper Rivas was gathering additional information from Mr. Garrett, NJSP Trooper Rachel Trent (“Trooper Trent”) arrived on the scene. ,(T1 at 164; Gov. Ex. DD at 22:42:50.) Trooper Rivas testified that he placed Mr. Garrett under arrest and transported him back to the NJSP Hope Station while Trooper Trent waited with the Garrett Vehicle until the tow truck operator arrived. (T1 at 164.) While Trooper Rivas was driving to the station with Mr. Garrett from the scene of the stop, Mr. Garrett advised that he needed his three cell phones from the center console of his vehicle. (Id. at 171-72.) Trooper Rivas placed a radio call to Trooper Trent requesting Mr. Garrett’s phones, and she retrieved the three phones accordingly. (Id.)

At the station, Trooper Rivas required Mr. Garrett to remove his shoes and belt pursuant to NJSP operating procedures, before placing Mr. Garrett into a holding cell. (T1 164-65.) Trooper Rivas testified that he observed a partially smoked marijuana blunt in Mr. Garrett’s left shoe. (Id.) After discovering the blunt, Trooper Rivas testified that he read Mr. Garrett his Miranda rights. (Id. at 236.) Trooper Rivas also testified that Mr. Garrett stated he understood the Miranda warnings, but that Mr. Garrett refused to sign a card indicating that he had been read his warnings. (Id. at 215-16.) Trooper Rivas testified that, after being advised of his rights, Mr. Garrett did not affirmatively invoke his right to remain silent or his right to an attorney. (Id. at 217, 228.)

Meanwhile, at the scene of the car stop, a tow operator, Mr. Unangst, reported to the scene. (T1 at 116-17.) Mr. Unangst testified at the evidentiary hearing that he .responded to a request by the NJSP to tow the Garrett Vehicle back to Mr. Un-angst’s impound lot. (Id.) Mr. Unangst testified that when he arrived on the scene, the Garrett Vehicle was on the side of the road with a police vehicle parked behind it. (Id. at 117-18.) Mr. Unangst also testified that a female police officer was present in her police vehicle when he arrived. (Id. at 118.) Mr. Unangst testified that he positioned the tow truck in front of the Garrett Vehicle in order to prepare to pull the Garrett Vehicle onto the deck of the tow truck. (Id. at 119-20.)

Mr. Unangst testified that with “higher-end” cars like the Mr. Garrett’s Mercedes, equipment called a “tow loop” is used to tow the vehicle without damaging the suspension or the frame of the vehicle. (T1 at 120.) The tow loop screws into the front bumper, and the tow hook from the tow truck attaches to the tow loop instead of the front bumper itself. (Id.) Mr. Unangst testified that in the course of his work as a tow truck operator, Mr. Unangst routinely used tow loops to tow high-end vehicles, which he understands to be the common practice among tow truck companies generally. (Id. at 128.)

As was his common practice, Mr. Un-angst used a key to open the trunk and retrieve the tow loop from the Garrett Vehicle. (T1 at 129-30.) Mr. Unangst testified that he did not recall exactly how he obtained the keys for the Garrett Vehicle, but he believed that either Trooper Trent handed him the keys for the Garrett Vehicle or the keys were left for him in or near the Garrett Vehicle. (Id. at 129, 140.) Mr. Unangst testified that the NJSP did not direct him to open the trunk of the Garrett Vehicle. (Id. at 120,128.)

Mr. Unangst testified that when he opened the trunk of the Garrett Vehicle, he noticed that it smelled like marijuana. (T1 121-22.) Mr. Unangst then lifted the floor mat of the trunk to search for the tow loop in the spare tire and tools chamber. (Id. at 122.) After lifting up the floor mat, Mr. Unangst saw a bag that was approximately ten to twelve inches in length. (Id.) Mr. Unangst testified that he thought the package contained marijuana. (Id. at 123.) Mr. Unangst then motioned to Trooper Trent to approach the trunk. (Id.) Mr. Unangst testified that when Trooper Trent saw the package, she advised Mr. Unangst that he would have to tow the Garrett Vehicle back to the state police barracks rather than to his impound lot as originally planned. (Id.) According to the CAD Report, Trooper Trent then notified the NJSP control center and the Hope Police Station that she was in custody of “CDS” (a term for “controlled dangerous substance”) and would be returning to the station. (Gov. Ex. SH-3500-AR-25.) Accordingly, Mr. Unangst then towed the Garrett Vehicle back to the NJSP barracks. (T1 at 123.)

Trooper Rivas testified that Trooper Trent informed him about the discovery of the bag and brought a “clear vacuum sealed bag with a black bag inside of it” to Trooper Rivas at the station. (T1 at 165.) Trooper Rivas then showed Mr. Garrett the package that had been recovered from the Garrett vehicle. (Id. at 168.) Trooper Rivas testified that Mr. Garrett appeared “taken aback” and “in shock, wide eyed” upon being shown the package. (Id.) Trooper Rivas testified that when he asked Mr. Garrett about the package, Mr. Garrett denied that the package belonged to him. (Id.) Trooper Rivas credibly testified that he then asked Mr. Garrett for his consent to search the package, and Mr. Garrett denied consent. (Id.)

Trooper Rivas testified that he then conducted additional investigation of Mr. Garrett’s criminal history which revealed “a significant criminal history” that included narcotics and violence. (T1 at 169.) Trooper Rivas credibly testified that based on the totality of the circumstances, he reached a belief that the package found in the Garrett Vehicle contained “a CDS, Controlled Dangerous Substance, some kind of drug.” (Id. at 169.)

Detective Shotwell testified that he received a call on September 1, 2010 from the Hope Police Station that provided an overview of the events of the evening involving Mr. Garrett and was instructed to go to the Hope Police Station to assist with the investigation. (T1 at 242-43.) When Detective Shotwell arrived at the Hope Police Station, he spoke to Trooper Rivas about the case and reviewed Mr. Garrett’s criminal history report, which included narcotics trafficking. (Id. at 243.) Detective Shotwell also testified that he noticed that Mr. Garrett possessed multiple prepaid cell phones, which he found to be indicative of criminal activity based on his training and experience. (Id. at 243-44.)

Detective Shotwell testified that he examined the vacuum-sealed package that had been recovered from the trunk of the Garrett Vehicle. (T1 at 244.) He noted that the clear vacuum-sealed package contained another dark-colored plastic bag within. (Id. at 244-45.) Detective Shot-well testified that he found the package to be suspicious, because vacuum-sealing sucks air out of a package and is used to mask the smell of the contents of the package. (Id. at 245.) Detective Shotwell also noted that the package did not appear to have been from the car manufacturer. (Id.)

Detective Shotwell testified that when he picked up the package, he could feel that the package contained several small-sized “bundles” within the dark plastic bag. (T1 at 245-46.) Detective Shotwell believed, based on his experience and the totality of the circumstances and the way the package and bundles looked and felt, that the smaller bundles inside the package contained narcotics. Detective Shot-well testified that, in the course of his career as a law enforcement officer, he had previously seen narcotics similarly packaged in a number of smaller bags, although not in the specific manner presented. (Id. at 246.)

Thereafter, Detective Shotwell testified that he discussed whether he should open the bag with his supervisor, Sergeant Walsh. (T1 at 246-47). They both agreed that the package should be opened for further investigation. (Id.)

Detective Shotwell opened the bag and testified that his first impression was an overwhelming vinegar odor. (T1 at 247.) Detective Shotwell observed five smaller clear bags that each contained a number of multi-colored balloons. (T1 at 24748; Gov. Ex. R-3.) In each clear plastic bag was a yellow piece of paper with the number “10” written on it.. (T1 at 248; Gov. Ex. R-5.) Detective Shotwell testified that he opened up one of the balloons and found a dark-colored powder inside that he believed to be heroin. (T1 at 248; Gov. Ex. R-6.) Trooper Rivas testified that a field test conducted on the powder found in the balloon tested positive for heroin. (T1 at 171.)

Trooper Rivas also testified that the morning after he opened the package, he called a K-9 unit to perform an exterior sniff of the vehicle, and the canine alerted to the trunk of the vehicle. (T1 at 177-78.) Trooper Rivas testified that he then applied for a search warrant for the Garrett Vehicle, which was approved by Warren County Superior Court Judge John J. Coyle. (Id. at 178-79; Gov. Ex. C.) Trooper Rivas testified that when he opened the trunk of the Garrett Vehicle for the search pursuant to the warrant, he noticed an odor of marijuana. (T1 at 182-83.) The search yielded a clear plastic bag containing marijuana found in a black duffel bag in the trunk of the car and a digital camera, among other items. (Id. at 179-84.)

Mr. Garrett was ultimately issued three citations as a result of the September 1, 2010 car stop which included: driving with a suspended license; careless driving; and operating a motor vehicle while in possession of CDS. (T1 at 163-64; 17273.) On October 31, 2011, Mr. Garrett pleaded guilty to the tickets for careless driving and driving with a suspended license, as well as to a charge of possession of marijuana. (Gov. Ex. S.) When Mr. Garrett’s attorney in the Pennsylvania proceeding asked Mr. Garrett during his allocution, whether he was “changing lanes haphazardly without signaling,” Mr. Garrett responded, under oath, that he was. (Gov. Ex. S at 10:42-43.)

b. Testimony from Mr. Garrett’s Affirmations

In his affirmations filed on June 9, 2014 and July 29, 2014, Mr. Garrett stated that (1) prior to his September 1, 2010 stop, he did not make an illegal lane change and did not fail to signal; (2) he did not consent to any search of his vehicle and its contents; and (3) he “did not deny knowledge of the package in the trunk.” (Garrett Affirm, filed with Garrett Mots, at 3; Garrett Affirm, filed with Garrett Reply, ECF No. 123-1.)

2. Application and Conclusions

Mr. Garrett seeks to suppress the physical evidence recovered from the Garrett Vehicle on the grounds that Trooper Rivas did not have probable cause to stop the Garrett Vehicle and that the bag found in the trunk of the Garrett Vehicle was illegally seized and searched. For the reasons set forth below, the court denies Mr. Garrett’s motion, finding that the NJSP officers had probable cause for each of the actions they took over the course of the investigation which yielded the contraband in the trunk of the Garrett Vehicle,

a. Trooper Rivas’s Testimony Was Credible

As an initial matter, Mr. Garrett’s affirmations challenge two factual claims made by Trooper Rivas: (1) that Trooper Rivas observed Mr. Garrett changing lanes without signaling and failing to maintain the lane and (2) that Mr. Garrett told Trooper Rivas that the package found in the trunk of the Garrett Vehicle did not belong to him. In both cases, the court finds Trooper Rivas’s testimony to be credible.

The court finds that Trooper Rivas was a truthful and reliable witness. The only inconsistency that Mr. Garrett has identified was the 16-minute discrepancy as to when the car stop began. Not only did Trooper Rivas provide a credible explanation for the discrepancy, but this inconsistency is, at best, minor, and does not cast doubt on Trooper Rivas’s testimony or candor.

In contrast, the court declines to give significant weight to Mr. Garrett’s affirmations. Because Mr. Garrett exercised his right not to testify, his testimony by affirmation was not subject to cross-examination. See, e.g., United States v. Walia, No. 14-cr-213 (MKB), 2014 WL 3563426, at *13 n. 8 (E.D.N.Y. July 18, 2014) (“As a general matter, credible testimony at a hearing is entitled to more weight than an affidavit, because testimony has been subjected to cross-examination.” (quoting United States v. Medina, 19 F.Supp.3d 518, 535 n. 13 (S.D.N.Y.2014) (collecting cases))); DiMattina v. United States, 949 F.Supp.2d 387, 411 (E.D.N.Y.2013) (“Without the threat of cross-examination, [the defendant’s] affidavits are viewed as self-serving and given little weight.”)

With respect to Mr. Garrett’s claim that he “did not make an illegal lane change, nor did [he] neglect to signal as the law requires,” the court also considers that the MVR footage showed Mr. Garrett acknowledging and apologizing for his difficulty with maintaining his lane, and offering problems with the air pressure in his tires as an explanation. (Gov. Ex. DD.) Moreover, Mr. Garrett pleaded guilty under oath to committing careless driving by making a lane change without using his turn signal before his vehicle was stopped. (Gov. Ex. S.) The court also notes that Mr. Garrett failed to claim in his initial pretrial motion that he did not make an illegal lane change, and only presented this assertion by affirmation in his reply, which further casts doubt on Mr. Garrett’s denial that he did not make an illegal lane change. Thus, the court finds Officer Rivas’s testimony that he observed Mr. Garrett making an illegal lane change and failing to maintain his lane to be entirely credible and finds Mr. Garrett’s statements to be inconsistent and unbelievable.

The court also finds credible Trooper Rivas’s testimony that Mr. Garrett advised Trooper Rivas that the package did not belong to Mr. Garrett. In Mr. Garrett’s affirmation filed with his reply, Mr. Garrett avers that he never denied “knowledge of that package in the trunk.” (Garrett Affirm, filed with Garrett Reply, EOF No. 123-1.) The court does not find Mr. Garrett’s testimony by affirmation and Trooper Rivas’s testimony at the eviden-tiary hearing to be inconsistent. The court makes the factual finding that Mr. Garrett had knowledge of the vacuum-sealed package in the trunk, but also denied that the package belonged to him. In his reply, Mr. Garrett “disputes the prosecution’s representation that he made a statement denying the bag was his.” (Garrett Reply, EOF No. 123, at 1.) To the extent that Mr. Garrett disputes Trooper Rivas’s claim that Mr. Garrett denied ownership of the package, the court declines to credit Mr. Garrett’s claim. Mr. Garrett has failed to present any evidence, in his affirmations or otherwise, that he ever disclaimed ownership of the vacuum-sealed package.

b. Trooper Rivas Had Probable Cause to Stop the Garrett Vehicle

The Fourth Amendment protects the “right of the people to be secure in their persons ... against unreasonable searches and seizures.” U.S. Const, amend. IV. This protection extends to vehicle stops. Whren v. United States, 517 U.S. 806, 809-10, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). “[T]he Fourth Amendment requires that an officer making a traffic stop have probable cause or reasonable suspicion that the person stopped has committed a traffic violation or is otherwise engaged in or about to be engaged in criminal activity.” United States v. Harrison, 606 F.3d 42, 45 (2d Cir.2010) (citation and internal quotation marks omitted). As set forth above, the court finds that Trooper Rivas’s observation of the Garrett Vehicle engaging in an illegal lane change and failing to maintain his lane established that Trooper Rivas had probable cause to believe that Mr. Garrett committed violations of New Jersey traffic laws. Thus, the stop of the Garrett Vehicle on September 1, 2010 was reasonable, based on probable cause, and proper under the United States Constitution.

c. The Package Was Found in Plain View and Its Seizure Was Lawful

A warrantless search and seizure is “per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” United States v. Kiyuyung, 171 F.3d 78, 83 (2d Cir.1999) (quoting Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)) (internal citations and quotation marks omitted). The “plain view” exception to the Fourth Amendment warrant requirement permits a law enforcement officer to seize an object “if its incriminating character is immediately apparent, and if the officer[ ] ha[s] a lawful right of access to the object.” Kiyuyung, 171 F.3d at 83 (quoting Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993)).

The first issue is whether Trooper Trent and Mr. Unangst had a lawful right to observe the package in plain view as the Garrett Vehicle was being prepared by Mr. Unangst to be towed. The court finds that the NJSP decision to tow the Garrett Vehicle and remove it from the highway was reasonable to safeguard Mr. Garrett’s property and to ensure the safety of the public, given that Mr. Garrett’s license was suspended and he could not drive legally, and that there was an outstanding warrant for his arrest. Thereafter, in an effort to protect Mr. Garrett’s property, a high-end Mercedes vehicle, Mr. Unangst, the private tow truck operator, acted according to industry practice by opening the trunk in order to locate the tow hooks, and then discovered the package in question and brought it to the attention of Trooper Trent. The evidence establishes that the NJSP and Mr. Unangst acted lawfully and reasonably to protect the public and Mr. Garrett’s property, and had every right to view the seized package. See Cady v. Dombrowski, 413 U.S. 433, 443, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) (affirming warrantless search of vehicle, which, “for elemental reasons of safety,” was towed after an accident); Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968) (upholding search where “discovery of the card was not the result of a search of the ear, but of a measure taken to protect the car while it was in police custody”).

The second issue is whether the “incriminating character” of the package found in the Garrett Vehicle was “immediately apparent.” The Supreme Court has articulated this standard as whether the police have “probable cause to believe that an object in plain view is contraband without conducting some further search of the object.” Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). Mr. Garrett argues that because the drugs were not visible in the bag “by sight or shape,” the incriminating character of “the bag’s contents” was not immediately apparent. (Garrett Post-Hr’g Mot. at 3.) (emphasis added). The court disagrees. The law does not require that narcotics be plainly observable in order to justify the seizure of a package under the plain view doctrine. See Texas v. Brown, 460 U.S. 730, 739, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (holding that the police property seized green balloon from defendant’s automobile, because officer was aware that balloons tied in the manner of the one possessed by the defendant were frequently used to carry narcotics, noting that “the opaque fabric of the balloon is all but irrelevant”); United States v. Lopez-Salcedo, No. 11 Cr. 482(LMM), 2011 WL 5838283 (S.D.N.Y. Nov. 18, 2011) (upholding officer’s seizure based on officer’s immediate recognition that package contained drugs). In United States v. Barrios-Moriera, the Second Circuit held that a law enforcement agent had probable cause to seize a package that he believed contained cocaine, because “the rectangular package, measuring a certain size, wrapped in duct tape, spoke volumes as to its contents, particularly to an experienced DEA agent.” 872 F.2d 12, 17 (2d Cir.1989), abrogated on other grounds by Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), and cert, denied, 493 U.S. 953, 110 S.Ct. 364, 107 L.Ed.2d 350 (1989) (internal quotations omitted).

Here, the court finds that the incriminating character of the vacuum-sealed package found in the trunk of the Garrett Vehicle was immediately apparent based on its shape and the manner in which it was packaged. The uncontroverted evidence establishes that Mr. Unangst opened the trunk of the Garrett Vehicle to search for tow hooks, smelled marijuana, and discovered the vacuum-sealed package in the spare tire compartment, which he suspected contained marijuana and prompted him to alert Trooper Trent. Consequently, Trooper Trent notified the radio dispatcher that she was in custody of suspected CDS and took the vacuum-sealed package to Hope Police Station.

“The Supreme Court has, in fact, stressed that analysis of fourth amendment issues involves ‘an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time’ and not on the officer’s actual state of mind at the time the challenged action was taken.” United States v. Scopo, 19 F.3d 777, 783 (2d Cir.1994) (citing Maryland v. Macon, 472 U.S. 463, 470-71, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985) (quoting Scott v. United States, 436 U.S. 128, 136, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978))). In light of the fact that at the time of the seizure, Trooper Trent had, at Mr. Garrett’s request, retrieved his three mobile phones from the center console of the Garrett Vehicle; Mr. Unangst had alerted her to the vacuum-sealed package in the trunk of the Garrett Vehicle; the trunk of the Garrett Vehicle smelled like marijuana; and Trooper Trent observed the rectangular, vacuum-sealed bag in the spare tire compartment of the Garrett Vehicle, the court finds that Trooper Trent’s seizure of the package based on probable cause to believe that it contained CDS was reasonable.

d. The Subsequent Search of the Package at the Police Station was Supported by Probable Cause

Mr. Garrett also argues that the subsequent warrantless search of the package found in the trunk of the Garrett Vehicle by Detective Shotwell was unlawful because (1) the initial seizure of the package was unlawful, and (2) the “plain feel” doctrine does not apply. As the court previously has determined that the warrantless seizure of the package was lawful, the'court addresses the “plain feel” exception.

The “plain feel” doctrine is a variation of the “plain view” doctrine that provides that law enforcement “may lawfully seize evidence they touch and can plainly feel is contraband or contains contraband.” See United States v. Cohn, No. 10 Cr. 498(RPP), 2011 WL 569874, at *13 (S.D.N.Y. Feb. 8, 2011) (citing Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993)). The Second Circuit has also held that law enforcement’s search of a container that plainly feels like it contains contraband is lawful. See United States v. Ocampo, 650 F.2d 421, 429 (2d Cir.1981) (holding that search of brown bag where law enforcement agents could plainly feel that the bag contained currency was lawful). However, where the nature of the object is not immediately apparent by touch, law enforcement is prohibited from “physical manipulation” such as “feelfing] the bag in an exploratory manner.” Bond v. United States, 529 U.S. 334, 338-39, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000). In Minnesota v. Dickerson, the Supreme Court found a search to be unconstitutional where an officer “determined that the lump was contraband only after squeezing, sliding and otherwise manipulating the contents of the defendant’s pocket — a pocket which the officer already knew contained no weapon.” 508 U.S. at 378, 113 S.Ct. 2130. Based on the evidence in the record, the court finds that Detective Shotwell determined that there were smaller. packages within the vacuum-sealed bag that he suspected contained narcotics, from a “plain feel” of the bag.

Irrespective of whether Detective Shot-well’s decision to open the package was justified by the “plain feel” doctrine, the court finds that the warrantless search of the package found in the trunk of Mr. Garrett’s car was permitted under the automobile exception. In California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991), the Supreme Court held:

Until today, this Court has drawn a curious line between the search of an automobile that coincidentally turns up a container and the search of. a container that coincidentally turns up in an automobile. The protections of the Fourth Amendment must not turn on such coincidences .... The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.

500 U.S. at 580, 111 S.Ct. 1982. Prior to Acevedo, separate doctrines permitted the warrantless search of an automobile to include a search of closed containers found inside the car when there is probable cause to search the vehicle, United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), but prohibited the warrantless search of a closed container located in a vehicle when there is probable cause to search only the container, Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979). In Acevedo, the Court resolved this distinction, finding that the police may engage in a warrantless search of a container found within a vehicle when they have probable cause to believe the container itself holds contraband or evidence. 500 U.S. at 580, 111 S.Ct. 1982. The Supreme Court reasoned that “prohibiting police from opening immediately a container in which the object of the search is most likely to be found and instead forcing them first to comb the entire vehicle would actually exacerbate the intrusion on privacy interests.” Id. at 574, 111 S.Ct. 1982 (quoting United States v. Ross, 456 U.S. 798, 821 n. 28, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)).

At the time of the seizure of the package, the NJSP had probable cause to search the rectangular, vacuum-sealed container pursuant to Acevedo. As previously discussed, Mr. Unangst had alerted Trooper Trent to the vacuum-sealed package in the trunk of the Garrett Vehicle, because he believed it contained marijuana; Trooper Trent observed the rectangular, vacuum-sealed bag in the spare tire compartment of the Garrett Vehicle which she reasonably believed contained CDS; the trunk of the Garrett Vehicle smelled like marijuana; and Trooper Trent had retrieved three of Mr. Garrett’s cell phones from the center console of the Garrett Vehicle. That the search of the vacuum-sealed package was delayed until Trooper Trent brought the package to Hope Police Station does not render the search unconstitutional. See United States v. Johns, 469 U.S. 478, 487, 105 S.Ct. 881, 83 L.Ed.2d 890 (1985) (upholding warrantless search of containers three days after they were removed from the trucks).

When Detective Shotwell made the determination to open the package at Hope Police Station, he had knowledge of the following additional facts: he could feel smaller packaged items within the vacuum-

sealed bag which he suspected contained contraband; a marijuana cigarette had been recovered from Mr. Garrett’s shoe during the processing of his arrest; Mr. Garrett’s criminal history involved multiple narcotics trafficking and weapons possession encounters with the criminal justice system; two of the mobile phones recovered from the Garrett Vehicle were prepaid phones, the use of which Detective Shotwell associated with criminal activity; he noticed that the bag was vacuum-sealed, suggesting that scent was being intentionally suppressed; and the bag did not appear to be an item placed in the trunk by the manufacturer of the vehicle. As in Acevedo, Detective Shotwell had probable cause to believe that the vacuum-sealed package recovered from the trunk of the Garrett Vehicle contained contraband, thus allowing a warrantless search of the package. See Acevedo, 500 U.S. at 580, 111 S.Ct. 1982 (“In the case before us, the police had probable cause to believe that the paper bag in the automobile’s trunk contained marijuana. That probable cause now allows a warrantless search of the paper bag.”); see also United States v. Carter, 173 Fed.Appx. 79, 81 (2d Cir.2006) (citing automobile exception and finding that law enforcement’s identification of a marijuana cigarette in the open ashtray “gave rise to a fair probability that contraband or evidence of a crime would be found”); United States v. Gaskin, 364 F.3d 438, 457 (2d Cir.2004) (articulating the automobile exception and stating that “courts recognize that experience and training may allow a law enforcement officer to discern probable cause from facts and circumstances where a layman may not.”).

e. The Package of Contraband Recovered from the Garrett Vehicle Is Also Admissible Under the Doctrine of Inevitable Discovery

Even assuming the seizure and search of the vacuum-sealed bag was unlawful, the court also analyzes the NJSP actions under the doctrine of inevitable discovery. The court concludes that the contraband recovered from the trunk of the Garrett Vehicle inevitably would have been obtained by the NJSP and is also admissible on this ground. It is well settled that “evidence obtained during the course of an unreasonable search and seizure should not be excluded if the government can prove that the evidence would have been obtained inevitably without the constitutional violation.” United States v. Heath, 455 F.3d 52, 55 (2d Cir.2006). The court is required to rely on “demonstrated historical facts capable of ready verification or impeachment” when determining, “at the instant before the unlawful search occurred, what would have happened had the unlawful search never occurred.” United States v. Stokes, 733 F.3d 438, 444 (2d Cir.2013) (internal quotations omitted). The Second Circuit requires that a court find, “with a high level of confidence, that each of the contingencies necessary to the legal discovery of the contested evidence would have resolved in the government’s favor.” Id. at 60 (quoting United States v. Lavan, 10 F.Supp.2d 377, 389 (S.D.N.Y. 1998)).

Even if the court were to find Fourth Amendment error, which it does not, in Trooper Trent’s seizure of the vacuum-sealed package from the trunk of the Garrett Vehicle and the subsequent search of the package, the court concludes that the contraband found in the package inevitably would have been discovered. As set forth, supra, the NJSP acted lawfully to stop the Garrett Vehicle for traffic violations, arrest him and impound his vehicle based on his suspended license and the outstanding arrest warrant, and tow the Garrett Vehicle from the roadside, which would have led to the lawful discovery of the vacuum-sealed package in plain view. At the moment of Trooper Trent’s decision to bring the package back to Hope Police Station based on her probable cause determination that the package contained CDS, she called to inform the NJSP officers at Hope Police Station that she found a package in the Garrett Vehicle that she suspected contained CDS. Even if Trooper Trent left the vacuum-sealed package in the trunk, Detective Shotwell and the NJSP officers at Hope Police Station had been alerted by Trooper Trent to the vacuum-sealed package suspected to contain CDS in the trunk of the Garrett Vehicle. With the knowledge that a package, suspected by a state trooper to contain CDS, was found in the trunk of the Garrett Vehicle, the NJSP officers would have continued to investigate the contents of the package. In light of the historical fact that the NJSP officers had found a marijuana blunt in Mr. Garrett’s shoe, had investigated Mr. Garrett’s criminal history of narcotics-related charges, and had recovered two pre-paid phones and one other mobile phone from the Garrett Vehicle at Mr. Garrett’s request, the court finds, with a high degree of confidence, that even had the package not been opened, the NJSP officers would have requested a canine sniff of the Garrett Vehicle to gather additional evidence to support their application for a search warrant. Thereafter, the canine would have alerted to the trunk, as it did before. Certainly, at this point, if not before, the NJSP officers would have applied for a warrant to search the Garrett Vehicle based on the following facts: Trooper Trent’s discovery of a vacuum-sealed package that she reasonably suspected contained CDS; a marijuana cigarette was discovered in Mr. Garrett’s shoe; a criminal history check of Mr. Garrett’s record revealed multiple prior convictions for drug distribution; three cellular phones were found in the car, including two pre-paid phones; and the strong likelihood that a canine sniff would have been conducted and yielded an alert to the trunk of the Garrett Vehicle. The court finds that there would have been more than sufficient probable cause at this juncture to justify the issuance of a search warrant for the search of the Garrett Vehicle for CDS. Based on the foregoing, and in light of the fact that Trooper Trent had already been in a position to lawfully view the vacuum-sealed package, the NJSP officers would have obtained the search warrant, opened the trunk, found the vacuum-sealed package in the spare tire compartment of the. Garrett Vehicle, and opened it pursuant to the warrant.

B. Motion to Suppress Mr. Garrett’s Post-Arrest Statements

Mr. Garrett moves to suppress all statements that he made after his arrest in this case on June 12, 2013 on the grounds that the statements were made in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). (Garrett Mots, at 3-4.) In light of the government’s representation that it will not seek to introduce Mr. Garrett’s post-arrest statements in its case-in-chief, the court denies the motion as moot. (Opp. at 78.)

C. Motion for Immediate Disclosure of Brady Material

Mr. Garrett moves to compel the immediate production of all evidence under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and other exculpatory evidence. Mr. Garrett also cites Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), which touches upon the government’s burden to produce impeachment evidence.

1. Legal Standard

“Under Brady and its progeny, ‘the Government has a constitutional duty to disclose favorable evidence to the accused where such evidence is ‘material’ either to guilt or to punishment.’ ” United States v. Certified Environmental Services, Inc., 753 F.3d 72, 91 (2d Cir.2014) (quoting United States v. Coppa, 267 F.3d 132, 139 (2d Cir.2001)). “Favorable evi-denee” that must be disclosed for purposes of Brady “includes not only evidence that tends to exculpate the accused, but also evidence that is useful to impeach the credibility of a government witness,” also known as “Giglio material.” Id. “[A] prosecutor must disclose evidence if, without such disclosure, a reasonable probability will exist that the outcome of a trial in which the evidence had been disclosed would have been different.” Coppa, 267 F.3d at 142.

The government must disclose all Brady and Giglio material “in time for its effective use at trial.” Id. The required timing of such a disclosure depends on the materiality of the evidence and the particular circumstances of each case; accordingly, the Second Circuit has refrained from defining the phrase “in time for effective use.” United States v. Taylor, 17 F.Supp.3d 162, 177 (E.D.N.Y.2014). A defendant has “no pretrial discovery right to Giglio materials.” United States v. RW Prof'l Leasing Servs. Corp., 317 F.Supp.2d 167, 179 (E.D.N.Y.2004) (citing United States v. Nixon, 418 U.S. 683, 701, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)). “A district court has the discretion to order Brady/Giglio disclosure at any time as a matter of sound case management.” Taylor, 17 F.Supp.3d at 177 (internal citation omitted).

2. Application

In its opposition memorandum, the government has represented to the court and Mr. Garrett that it is aware of its obligations under Brady, that it is unaware of any Brady material in its possession, and that it will immediately produce such material if it becomes aware that such material exists. (See Opp. at 78-79.) Because Mr. Garrett has not given the court reason to believe that the government is not in compliance with its Brady obligations, the court denies, without prejudice, Mr. Garrett’s motion to compel under Brady. RW Prof l Leasing Servs. Corp., 317 F.Supp.2d at 179.

Additionally, the government plans to produce Giglio material “in advance of trial” to the extent advance production of the materials is possible. (Opp. At 79-80.) Thus, as there is no pre-trial right to Giglio material and the government has represented that it will produce Giglio materials in advance of trial, the court denies Mr. Garrett’s motion for immediate disclosure of Giglio material.

D. Motion for Timely Disclosure of Evidence Pursuant to Federal Rule of Evidence 404(b)

Mr. Garrett requests that the government list any evidence pursuant to Federal Rule of Evidence 404(b) in a timely manner. Rule 404(b) requires that, the government provide “reasonable notice in advance of trial” of its intent to introduce evidence of a defendant’s other crimes or bad acts. Fed.R.Evid. 404(b). In light of the fact that the court has already ordered the government to submit its motion to admit evidence pursuant to Rule 404(b) by February 13, 2015 (Third Criminal Pretrial Scheduling Order, EOF No. 139), the court denies Mr. Garrett’s motion as moot.

E. Motion to Sever and Order Disclosure of Statements Offered Against Each Defendant

Mr. Garrett moves to sever his trial from that of Mr. Rivera on the basis that the introduction of Mr. Rivera’s confessions (e.g., his proffer statements to government agents on August 30, 2012) would violate Mr. Garrett’s constitutional confrontation rights as set forth in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Defendant also argues that a joint trial will “impermissibly poison the jury against Garrett” due to the anticipated admission of “certain evidence against Rivera that is largely inadmissible against Garrett.” (Garrett Mots, at 45.) Mr. Garrett also requests the court to direct the government to identify defendants’ statements it intends to introduce so that Mr. Garrett may make a comprehensive request for severance.

1. Legal Standard

Rule 8(b) of the Federal Rules of Criminal Procedure (“Rule 8(b)”) provides that an indictment or information may charge multiple defendants who allegedly “participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses.” Fed. R.Crim.P. 8(b). The Supreme Court has recognized and reaffirmed “a preference in the federal system for joint trials of defendants who are indicted together” because they promote efficiency and prevent the injustice of inconsistent verdicts. Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993). Where “the crime charged involves a common scheme or plan,” a joint trial of the participants is typically proper. United States v. Girard, 601 F.2d 69, 72 (2d Cir.1979) (citing United States v. Arroyo-Angulo, 580 F.2d 1137, 1144 (2d Cir.1978)); United States v. Green, 561 F.2d 423 (2d Cir.1977), cert. denied, 434 U.S. 1018, 98 S.Ct. 739, 54 L.Ed.2d 764 (1978). Joint trials also “limit inconveniences to witnesses, avoid delays in bringing defendants to trial and permit the entire story to be presented to a single jury.” United States v. Rucker, 32 F.Supp.2d 545, 547 (E.D.N.Y.1999).

Nevertheless, if a court finds that a joint trial would prejudice a defendant or the government, the court may sever the defendants’ trial pursuant to Federal Rule of Criminal Procedure 14(a) (“Rule 14(a)”). In Bruton v. United States, the Supreme Court has specifically recognized that introduction at a joint trial of “the powerfully incriminating extrajudicial statements of a co-defendant, who stands accused side by side with the defendant” deprives the defendant of his Sixth Amendment right of confrontation, even if the jury is instructed to consider the confession only against the co-defendant. 391 U.S. 123, 136, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In order to address a Bruton problem, the Second Circuit has established that courts may (1) sever the trial; (2) carefully redact the confession to eliminate references to co-defendants; or (3) exclude the confession at the joint trial. See United States v. Jass, 569 F.3d 47, 56 n. 5 (2d Cir.2009).

“[T]he appropriate analysis to be used when applying the Bruton rule requires that [the court] view the redacted confession in isolation from other evidence introduced at trial.” United States v. Williams, 936 F.2d 698, 700 (2d Cir.1991). The Jass court explained that Bmton and its progeny “do not construe the Confrontation Clause to demand further that a confession be redacted so as to permit no incriminating inference against the non-declarant defendant.” 569 F.3d at 60. The Court further explained that “[t]he critical inquiry is [] not whether a jury might infer from other facts ... that a declarant’s neutral allusion to a confederate might have referenced the defendant” but “whether the neutral allusion sufficiently conceals the fact of explicit identification to eliminate the overwhelming probability that a jury hearing the confession at a joint trial will not be able to follow an appropriate limiting instruction.” Id. at 61.

When employing redaction to avoid Bru-ton concerns, the Second Circuit thus recognizes two acceptable types of redactions: (1) redactions eliminating altogether any reference to a co-defendant’s existence; and (2) redactions replacing a co-defendant’s name with neutral pronouns so that the statement, standing alone, does not refer to the co-defendant. Jass, 569 F.3d at 56.

In addition, courts should sever defendants who are properly joined under Rule 8(b) when the prejudice against a defendant is so great that “there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” United States v. Rittweger, 524 F.3d 171, 179 (2d Cir.2008) (quoting Zafiro, 506 U.S. at 539, 113 S.Ct. 933). A defendant seeking severance under Rule 14 bears an “ ‘extremely difficult burden’ of proving ... that the prejudice would be so great as to deprive him of his right to a fair trial.” United States v. Bellomo, 954 F.Supp. 630, 649 (S.D.N.Y.1997) (quoting United States v. Casamento, 887 F.2d 1141, 1149 (2d Cir.1989)).

The determination of whether such prejudice exists is highly fact-specific and must be evaluated on a case-by-case basis. Id. Moreover, the decision of whether to sever a trial is committed to the sound discretion of the district court. United, States v. Wilson, 11 F.3d 346, 353 (2d Cir.1993).

2. Application

With respect to Mr. Garrett’s argument that severance is necessary because the government’s introduction of Rivera’s “multiple confessions” will violate Mr. Garrett’s rights under Bruton, the court respectfully disagrees. The government may, under certain conditions articulated in its submissions , seek to introduce Mr. Rivera’s statements made at his August 30, 2012 proffer session. The government attached to its opposition memorandum Exhibit O, a “Brutonized” document containing “all of the statements from Rivera’s proffer session that it may seek to introduce at trial.” (emphasis added) (Opp. at 85.)

The court has reviewed the government’s Exhibit 0 and finds that Exhibit O’s modifications “sufficiently conceal[ ] the fact of explicit identification” such that a jury hearing the confession at a joint trial will be able to follow an appropriate limiting instruction. Jass, 569 F.3d at 61. First, because Mr. Rivera’s statements were made at a proffer session, instead of in a written or recorded form, the government has represented that if it does introduce Mr. Rivera’s statements at trial, it will do so through the testimony of a law enforcement agent present at the proffer session. (Opp. at 86.) Therefore, as demonstrated in the government’s Exhibit O, the risk of clumsy redactions, which are prohibited by the Confrontation Clause, is minimized. See Gray v. Maryland, 523 U.S. 185, 192, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998) (“Redactions that simply replace a name with an obvious blank space or a word such as ‘deleted’ or a symbol or other similarly indications of alteration, however, leave statements that, considered as a class, so closely resemble Bruton’s unredacted statements that, in our view, the law must require the same result.”) Furthermore, the court has reviewed the government’s Exhibit 0, and notes that the government’s modifications have eliminated all references to Mr. Garrett in accordance with the Second Circuit’s decision in Jass.

The court also finds that Mr. Garrett has failed to meet his heavy burden of proving that severance is warranted because he will be so greatly prejudiced that he will be deprived of a fair trial if the court permits “the admission of certain evidence against Rivera that is largely inadmissible against Garrett.” (Garrett Mots, at 4-5.) Mr. Garrett is particularly concerned that prejudice may result from the admission of statements by Mr. Rivera that implicate Mr. Garrett. (Garrett Mots, at 4.)

First, with respect to Mr. Garrett’s concern about “the admission of certain evidence against Rivera that is largely inadmissible against Garrett,” the court notes that the statements about which Mr. Garrett is concerned would likely be admitted against Mr. Garrett in a separate trial. Statements (as distinguished from Mr. Rivera’s proffer statement, which may implicate Bruton) made by co-defendants in furtherance of a conspiracy during the period of the charged conspiracy, even statements by one defendant that may implicate another defendant, are admissible as co-conspirator declarations and are “not hearsay” under Federal Rule of Evidence 801(d)(2)(E). Fed.R.Evid. 801(d)(2)(E); United States v. DeVillio, 983 F.2d 1185, 1193 (2d Cir.1993).

Second, severance is not necessarily required simply because evidence is admissible against one defendant but not another. United States v. Carson, 702 F.2d 351, 367 (2d Cir.1983); see also United States v. Rucker, 586 F.2d 899, 902 (2d Cir.1978) (“The fact that evidence may be admissible against one defendant but not against others does not require separate trials.”); United States v. Cardascia, 951 F.2d 474, 482 (2d Cir.1991) (noting that “disparities] in the quantity of evidence and of proof of culpability are inevitable in any multi-defendant trial, and by themselves do not warrant a severance”).

The court recognizes that there could be instances in which severance is necessary because the volume of evidence adduced at trial that is only relevant against one defendant is grossly disproportional to that of his or her co-defendants. In United States v. DiNome, 954 F.2d 839 (2d Cir. 1992), for example, the Second Circuit found reversible error in the trial court’s denial of severance as to certain defendants because “an infinitesimal fraction” of evidence offered during a sixteen-month trial related to those certain defendants, who were therefore “swamped” by a “mass of irrelevant evidence.” Id. at 844-45.

The concerns in DiNome will be absent in the instant trial, which is estimated to last six weeks and involves just two defendants, Mr. Garrett and Mr. Rivera, both of whom are alleged to be members of the same conspiracy. The court accepts and the defendants do not challenge the government’s representations that Mr. Rivera and Mr. Garrett “are fairly equally represented in the government’s voluminous discovery to date.” (Opp. at 88; see Opp. at 28-30.) Indeed, the Second Circuit has stated that joint trials are often “particularly appropriate” where, as here, defendants allegedly participated in the same criminal conspiracy. United States v. Spinelli, 352 F.3d 48, 55 (2d Cir.2003).

Furthermore, the court denies Mr. Garrett’s request that the government identify “which statements it intends to introduce so defendant may make a comprehensive request for severance.” As previously discussed, the statements which Mr. Garrett references would likely be admissible against Mr. Garrett under Rule 801(d)(2)(E), even in a separate trial. Thus, the government’s disclosure of these statements is unlikely to bolster Mr. Garrett’s argument for severance. In any event, the court finds that the disclosure of this information would likely be insufficient to establish that a joint trial would be so prejudicial as to constitute a “miscarriage of justice.” United States v. Locascio, 6 F.3d 924, 947 (2d Cir.1993). Should the parties object at trial, the court will certainly evaluate all statements that the government seeks to introduce for prejudice against each defendant and exclude testimony when the interests of justice so require. '

F. Motion for a Bill of Particulars

Mr. Garrett maintains that the superseding indictment and the government’s discovery disclosures do not provide adequate information to defend against the money laundering allegations charged as Count Eight and Racketeering Act Five. (Garrett Mots, at 16-17.) Mr. Garrett thus seeks a bill of particulars that includes specific descriptions of Garrett’s actions and detailed information about each alleged money laundering transaction. (Id. at 17.)

1. Legal Standard

Federal Rule of Criminal Procedure 7(f) allows a defendant to seek a bill of particul