Terrence Brown, by and through undersigned counsel, hereby moves this Court order the government to produce certain call records for Mr. Brown, and states: FACTS The governments theory of prosecution is that Mr. Brown and his alleged co- conspirators attempted to rob various armored car messengers on different occasions, culminating in the murder of Alejandro Nodarse Arencibia, a Brinks armored truck messenger on October 1, 2010. The government contends that Mr. Brown was the mastermind of the robbery. The government has produced to Mr. Brown telephone records for two mobile telephone numbers that the government claims are Mr. Browns: 786-307-4240 and 786-419- 2326. The first date for either of the numbers is September 1, 2010. In efforts to gain a conviction of Mr. Brown the government relies upon the records it has produced to fashion cell phone location charts based on information the government received from the service provider for those numbers MetroPCS. Because the government has claimed not to have records for the two numbers dating prior to September 1, 2010 (asserting that at the time the government sought Case 0:11-cr-60285-RSR Document 778 Entered on FLSD Docket 06/09/2013 Page 1 of 6 2 SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A.
the records MetroPCS no longer maintained them), the government instead uses Nathanial Mosss, or other cell phone records as evidence of Mr. Browns alleged involvement. (See Exhibits A, B, C, D and E, attached hereto.) In particular, the government urges that because Mr. Brown called Moss or somebody else who was located in a particular location at times Moss testified acts were taking place in furtherance of the conspiracy, Mr. Brown must have been located within the location and/or involved in the conspiracy. On Wednesday, June 5, 2013, the Guardian newspaper published a Top Secret FISA Court Order relating to certain cell phone carrier data; the data is being collected by the National Security Agency (NSA). Because the published order was marked classified, it is not attached to this pleading; the order is widely available on the internet. The order and a related program, entitled PRISM have otherwise been widely reported in the national and international media. On Friday, June 7, 2013, President Obama has acknowledged the program and what it collects: Now, the programs that have been discussed over the last couple days in the press are secret in the sense that they're classified. But they're not secret in the sense that when it comes to telephone calls, every member of Congress has been briefed on this program. With respect to all these programs, the relevant intelligence committees are fully briefed on these programs. These are programs that have been authorized by broad bipartisan majorities repeatedly since 2006.
And so, I think at the outset, it's important to understand that your duly elected representatives have been consistently informed on exactly what we're doing. Now, let me take the two issues separately.
When it comes to telephone calls, nobody is listening to your telephone calls. Thats not what this program is about. As was indicated, what the intelligence community is doing is looking at phone numbers and durations of calls. They are not looking at peoples names, and theyre not looking at content. But by sifting through this so-called metadata, they may identify potential leads with respect to folks who might engage in terrorism. If these folks -- if the intelligence community then actually wants to listen to a phone call, they've got to go back to a federal judge, just like they would in a criminal investigation.
So I want to be very clear -- some of the hype that weve been hearing over the last day or so -- nobody is listening to the content of people's phone calls. This Case 0:11-cr-60285-RSR Document 778 Entered on FLSD Docket 06/09/2013 Page 2 of 6 3 SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A.
program, by the way, is fully overseen not just by Congress, but by the FISA Court -- a court specially put together to evaluate classified programs to make sure that the executive branch, or government generally, is not abusing them, and that it's being carried out consistent with the Constitution and rule of law.
And so, not only does that court authorize the initial gathering of data, but -- I want to repeat -- if anybody in government wanted to go further than just that top- line data and want to, for example, listen to Jackie Calmes phone call, they would have to go back to a federal judge and indicate why, in fact, they were doing further probing.
(Tr. Statement of President Obama, June 7, 2013, last viewed June 9, 2013, at <http://www.dailykos.com/story/2013/06/07/1214491/-President-Obama-s-statement-on-ACA- and-answering-question-on-NSA-in-San-Jose-CA>.) The metadata President Obama referred to includes cell phone location data. This program has been ongoing since 2006, and despite the fact that the FISA Order which was revealed only relates to Verizon, it is clear from the Presidents remarks, the context of the collection efforts, as well as other well publicized statements in the media by members of Congress, that the collection includes all cell phone providers, not just Verizon. ARGUMENT AND LAW The government must be ordered to turn over the records for the two telephones that it attributes to Mr. Brown for the dates which are relevant to this case the month of July of 2010. The records sought are required to be produced pursuant to Federal Rule of Criminal Procedure 16(a)(1)(E): Upon a defendants request, the government must permit the defendant to inspect and to copydocuments, dataor copies or portions of any of these items, if the item is within the governments possession, custody, or control and: (i) the item is material to preparing the defense The records for the two telephone numbers are in the governments possession. The NSA operates under the authority of the United States Department of Defense, an arm of the executive branch of government. The FISA court order that has been widely published was Case 0:11-cr-60285-RSR Document 778 Entered on FLSD Docket 06/09/2013 Page 3 of 6 4 SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A.
issued pursuant to an FBI affidavit. The FBI is a member of this prosecution team, as is the Attorney Generals Office, which in addition to passing upon the applicability of the death penalty in this matter, also authorized the government to confer immunity upon Elliott Maurice Davis. In the event this Court determines that the records are not within the governments possession or control, Mr. Brown respectfully requests this Court issue a Rule 17 subpoena directing the NSA to produce the records and metadata in its possession relating to 786-307-4240 and 786-419-2326, for the month of July, 2010. The records are material and favorable to Mr. Browns defense; they are evidentiary and relevant to the issues in trial; they are not otherwise procurable by exercise of due diligence; the application is made in good faith and is not intended as a general fishing expedition; and, the records are necessary for Mr. Brown to meet the governments evidence in this matter. I HEREBY CERTIFY that pursuant to Local Rule 88.9, a good faith effort was made to resolve the issues raised in this motion and the government opposes the relief requested. Case 0:11-cr-60285-RSR Document 778 Entered on FLSD Docket 06/09/2013 Page 4 of 6 5 SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A.
WHEREFORE, Terrence Brown respectfully requests this Honorable Court order the government to produce the July, 2010 records for 786-307-4240 and 786-419-2326, or in the alternative authorize the issuance of a subpoena to the NSA to obtain the same records. Respectfully Submitted,
s/ Marshall Dore Louis Marshall Dore Louis Florida Bar No. 512680 SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A. Alfred I. duPont Building 169 East Flagler Street, Suite 1125 Miami, FL 33131 TEL: (305) 374-0544 FAX: (305) 381-6869 E-MAIL: [email protected]
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on June 9, 2013 I filed the foregoing document with the Clerk of the Court. I also certify that the foregoing document is being served this day on all counsel of record identified on the attached Se rvice List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notice of Electronic Filing. s/ Marshall Dore Louis Marshall Dore Louis Florida Bar No. 512680 SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A. Alfred I. duPont Building 169 East Flagler Street, Suite 1125 Miami, FL 33131 TEL: (305) 374-0544 FAX: (305) 381-6869 E-MAIL: [email protected] Case 0:11-cr-60285-RSR Document 778 Entered on FLSD Docket 06/09/2013 Page 5 of 6 6 SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A.
SERVICE LIST Michael E. Gilfarb Mark Dispoto 99 Northeast 4th Street Miami, Florida 33132-2111 Facsimile: 305-536-4676 Email: [email protected] Email: [email protected] (Via CM/ECF Electronic Notification)
Martin L. Roth 101 N.E. Third Avenue Suite 1430 Fort Lauderdale, FL 33301 954-745-7697 Fax: 745-7698 Email: [email protected] (Via CM/ECF Electronic Notification)
Attorney for Daryl Davis
Marc David Seitles Courthouse Center 40 N.W. 3rd Street Penthouse One Miami, FL 33128 305-403-8070 Fax: 305-403-8210 Email: [email protected] (Via CM/ECF Electronic Notification)
Attorney for Hassam Williams
David Jonathon Joffe One East Broward Boulevard Suite 700 Fort Lauderdale, FL 33301 954-723-0007 Fax: 723-0033 Email: [email protected] (Via CM/ECF Electronic Notification)
Attorney for Joseph K. Simmons Case 0:11-cr-60285-RSR Document 778 Entered on FLSD Docket 06/09/2013 Page 6 of 6 FEBERAL B0REA0 0F INvESTIuATI0N CELL0LAR ANALYSIS S0RvEY TEAN Cellulai Analysis Foi
Special Agent Baviu N Nagnuson FBI Cellulai Analysis Suivey Team CAST Cellulai Analysis Suivey Team CAST }une 1 Case 0:11-cr-60285-RSR Document 778-1 Entered on FLSD Docket 06/09/2013 Page 1 of 5 An analysis was conuucteu of the below cell phone iecoius foi the time peiiou of fiom ANto AN A location matiix time peiiou of fiom AN to AN A location matiix anuoi mapping solution then was piepaieu to show the location of these cell phones uuiing this time fiame N0SS BR0WN No iecoius available NABIS0N No iecoius available B BAvIS WILLIANS }0BNS0N Case 0:11-cr-60285-RSR Document 778-1 Entered on FLSD Docket 06/09/2013 Page 2 of 5 LOCATION MATRIX FOR 7/10/2010 FROM 3:55 AM TO 5:24 AM MOSS BROWN MADISON DAVIS WILLIAMS JOHNSON LOCATIONMATRIXFOR7/10/2010FROM3:55AMTO5:24AM MOSS BROWN MADISON DAVIS WILLIAMS JOHNSON AtTheft Sitein Royal Palm NoLocation Data.But has18calls with MOSS NoLocation Data.But has5calls with MOSS NoLocation Datafrom 2:42AM through Locatedin Miramar,FL Locatedin Opa Locka, FL Palm Beach withMOSS from12:40 AMthrough 8:13AM. withMOSS between 3:55AM through5:23 AM. through 8:46AM. Available datashows atworkprior andhome after. Case 0:11-cr-60285-RSR Document 778-1 Entered on FLSD Docket 06/09/2013 Page 3 of 5 On7/10/2010from3:55AMuntil5:23AMMOSShas5consecutive callswith(754)2347001(MADISON)whileutilizingsector192737549 (shown below). MOSS also has several calls with (786) 3074240 (shownbelow).MOSSalsohasseveralcallswith(786)307 4240 (BROWN)whileinthevicinityofRoyalPalmBeach,FL. 192737549 104CountryClubWay RoyalPalmBeach,FL Case 0:11-cr-60285-RSR Document 778-1 Entered on FLSD Docket 06/09/2013 Page 4 of 5 END OF REPORT ENDOFREPORT 5 Case 0:11-cr-60285-RSR Document 778-1 Entered on FLSD Docket 06/09/2013 Page 5 of 5 FEBERAL B0REA0 0F INvESTIuATI0N CELL0LAR ANALYSIS S0RvEY TEAN Cellulai Analysis Foi
Special Agent Baviu N Nagnuson FBI Cellulai Analysis Suivey Team CAST Cellulai Analysis Suivey Team CAST }une 1 Case 0:11-cr-60285-RSR Document 778-2 Entered on FLSD Docket 06/09/2013 Page 1 of 10 An analysis was conuucteu of the below cell phone iecoius foi the time peiiou of fiom ANto AN A location matiix time peiiou of fiom AN to AN A location matiix anuoi mapping solution was piepaieu to show the location of these cell phones uuiing this time fiame N0SS BR0WN No iecoius available NABIS0N No iecoius available B BAvIS WILLIANS }0BNS0N Case 0:11-cr-60285-RSR Document 778-2 Entered on FLSD Docket 06/09/2013 Page 2 of 10 LOCATIONMATRIXFOR7/12/2010FROM12:49AM TO 6:41 AM MOSS BROWN MADISON DAVIS WILLIAMS JOHNSON TO6:41AM At 5:31AM insector covering thevicinity of theft No recordsfor thattimeframe. ButMOSSs recordsshow BROWN talking NoLocation Data.Buthas 2callswith MOSSat12:49 AM and 6:11 Miami Gardens,FL at6:47AM. Nodata available Locatedin Miramar,FL buthas3calls withMOSSat 6:03 AM; 6:22 LocatedinOpa Locka,FL.No locationdata from10:24PM on 7/11/10 oftheft site. BROWNtalking withMOSSat 5:31AM and6:17AMon 7/12/10. AMand6:11 AM. available priorinthe morning. 6:03AM;6:22 AMand6:41 AM. on7/11/10 through10:32 AMon7/12/10. Case 0:11-cr-60285-RSR Document 778-2 Entered on FLSD Docket 06/09/2013 Page 3 of 10 480SherwoodForestDrive DeerfieldBeach,FL StolenInfinitySUV On7/12/2010at5:31 AMMOSSplacesa19 minutecallto(786)307 4240(T.BROWN)while inthesectorshown. Case 0:11-cr-60285-RSR Document 778-2 Entered on FLSD Docket 06/09/2013 Page 4 of 10 On7/12/2010at6:03 AMMOSSplacesacall to(786)2991565(H. WILLIAMS)whileinthe sectorshown. Case 0:11-cr-60285-RSR Document 778-2 Entered on FLSD Docket 06/09/2013 Page 5 of 10 On7/12/2010at6:11 AMMOSSplacesacall to(754)2347001(B. MADISON)whileinthe sectorshown. Case 0:11-cr-60285-RSR Document 778-2 Entered on FLSD Docket 06/09/2013 Page 6 of 10 Locationof(954)2432836(JOHNSON)from10:24PMon7/11/2010to 12:07PMon7/12/2010(stationary) Case 0:11-cr-60285-RSR Document 778-2 Entered on FLSD Docket 06/09/2013 Page 7 of 10 20411NW2Court MiamiGardens,FL T.BROWNsResidence 144237425 On7/12/2010at9:09AM MOSSreceivesacallfrom (786)3074240(T.BROWN) whileinthesectorshown. VicinityofT.BROWNs Residence. Case 0:11-cr-60285-RSR Document 778-2 Entered on FLSD Docket 06/09/2013 Page 8 of 10 19000 NW 8 Avenue 19000NW8Avenue Miami,FL D.DAVISResidence 190558486 On7/12/2010at12:34 PMMOSSreceivesacall from(954)3051469 (UnknownSubscriber) whileinthesector shown(vicinityofD. DAVISsresidence). Case 0:11-cr-60285-RSR Document 778-2 Entered on FLSD Docket 06/09/2013 Page 9 of 10 END OF REPORT ENDOFREPORT 10 Case 0:11-cr-60285-RSR Document 778-2 Entered on FLSD Docket 06/09/2013 Page 10 of 10 FEBERAL B0REA0 0F INvESTIuATI0N CELL0LAR ANALYSIS S0RvEY TEAN Cellulai Analysis Foi
Special Agent Baviu N Nagnuson FBI Cellulai Analysis Suivey Team CAST Cellulai Analysis Suivey Team CAST }une 1 Case 0:11-cr-60285-RSR Document 778-3 Entered on FLSD Docket 06/09/2013 Page 1 of 6 An analysis was conuucteu of the below cell phone iecoius foi the time peiiou of fiom PN to PN A location p matiix anuoi mapping was piepaieu to show the location of these cell phones uuiing this time fiame N0SS BR0WN No iecoius available NABIS0N N u il bl NABIS0N No iecoius available B BAvIS WILLIANS }0BNS0N } PARRISB No iecoius available Case 0:11-cr-60285-RSR Document 778-3 Entered on FLSD Docket 06/09/2013 Page 2 of 6 LOCATIONMATRIXFOR7/19/2010FROM12:00PM TO2:00PM. MOSS BROWN MADISON DAVIS WILLIAMS JOHNSON Li h h N d L d i L d i L d i h Li h h P i Lighthouse Point,FLat 1:00PM.See mapping solution. No records forthattime frame.But MOSS recordsshow Located in Miami Gardensarea at10:18AM andthen Locatedin Aventuraand N.Miamiarea From12:21 PMthrough Located inthe Miramarand MiamiGardens areaduringthis period. Lighthouse Point, FLat1:03PM. JOHNSONcalls MOSSat9:22AM; 9:23AMand9:41 BROWN talkingwith MOSSat 9:08AM, 2:25 PM and againat3:04 PM.Nodata inbetween thesetimes. Communicat g 1:51 PM p AM.Seemapping solution. 2:25PM,and 6:19PM. Communicat eswith BROWN severaltimes thisday. Case 0:11-cr-60285-RSR Document 778-3 Entered on FLSD Docket 06/09/2013 Page 3 of 6 (786)2586024 (MOSS)locatedin thissectorat1:00 PMon7/19/2010. / / 191024627 BankofAmerica 2800N.FederalHighway NOTE:TheonlyothertimeMOSSphoneconnectstothistower/sectorison7/26/2010at 12:06:56PMand12:09:04PM.Over12,500callswereanalyzedovera9monthperiod. Case 0:11-cr-60285-RSR Document 778-3 Entered on FLSD Docket 06/09/2013 Page 4 of 6 (954) 2432836 (954)243 2836 (JOHNSON)located inthissectorat1:03 PMon7/19/2010. 191024627 BankofAmerica 2800N.FederalHighway NOTE:JOHNSONsphoneconnectstothisparticulartower/sectoronlyononeotheroccasion (7/14/2010at11:00AM),outofover16,000callsanalyzedovera1yearperiod. Case 0:11-cr-60285-RSR Document 778-3 Entered on FLSD Docket 06/09/2013 Page 5 of 6 END OF REPORT ENDOFREPORT 6 Case 0:11-cr-60285-RSR Document 778-3 Entered on FLSD Docket 06/09/2013 Page 6 of 6 FEBERAL B0REA0 0F INvESTIuATI0N CELL0LAR ANALYSIS S0RvEY TEAN Cellulai Analysis Foi
Special Agent Baviu N Nagnuson FBI Cellulai Analysis Suivey Team CAST Cellulai Analysis Suivey Team CAST }une 1 Case 0:11-cr-60285-RSR Document 778-4 Entered on FLSD Docket 06/09/2013 Page 1 of 5 0n at PN anu PN PN a license plate scanning uevice locateu at N Feueial Bighway Lighthouse Point FL g g y g uetecteu license plate numbei }vR Investigation ievealeu license numbei }vR is a Cheviolet Tiaveise iegisteieu to ANNIE NCC0Y the mothei of } PARRISBs giilfiienu This vehicle was useu uuiing the mothei of } PARRISB s giilfiienu This vehicle was useu uuiing the casing of BRINKS ARN0REB TR0CK ioute at Bank of Ameiica in Lighthouse Point FL An analysis was conuucteu of the below cell phone u f th ti i u f f b t PNth h iecoius foi the time peiiou of fiom about PN thiough PN A location matiix anuoi mapping solution then was piepaieu to show the location of these cell phones uuiing this time fiame WILLIANS N0SS }0BNS0N B BAvIS BR0WN No iecoius available NABIS0N No iecoius available } PARRISB No iecoius available Case 0:11-cr-60285-RSR Document 778-4 Entered on FLSD Docket 06/09/2013 Page 2 of 5 LOCATIONMATRIXFOR7/21/2010FROM1:00PM THROUGH3:00PMDURINGTHECASINGOFBRINKS ARMOREDTRUCKATBANKOFAMERICALOCATEDIN LIGHTHOUSEPOINT,FL. MOSS DAVIS MADISON WILLIAMS JOHNSON BROWN Located4 miles Locatedin Miami Located in Tamarac,FL Located inthe MiamiGardens Locatedin Opa Locka No records forthistime southof Bankof America, in Lighthouse Gardensarea at3:29PM. Nolocation dataavailable from5:32AM through 3:13 , areaduringthe 1:00PMto 3:00PMtime periodbuthas 6 calls with andN.Miami Beacharea duringthis period. Opa Locka, FLat9:06 AMand Hollywood, FL at 3:36 frame.Has6 callswith MADISON. Lighthouse Point,FLat 2:28PM. See mapping through3:13 PMon 7/21/2010. 6callswith BROWNduring thistime frame. FLat3:36 PM.No locationdata forthe period solution. period analyzed. Case 0:11-cr-60285-RSR Document 778-4 Entered on FLSD Docket 06/09/2013 Page 3 of 5 Bank of America BankofAmerica 2800N.FederalHighway (786) 2586024 (786)2586024 (MOSS)locatedin thissectorat2:28 PMon7/21/2010. 191017020 NOTE:MOSSphoneconnectstothisparticulartower/sectoronlyonthisoccasion,outofover 12,500callsanalyzedovera9monthperiod. Case 0:11-cr-60285-RSR Document 778-4 Entered on FLSD Docket 06/09/2013 Page 4 of 5 END OF REPORT ENDOFREPORT 5 Case 0:11-cr-60285-RSR Document 778-4 Entered on FLSD Docket 06/09/2013 Page 5 of 5 FEBERAL B0REA0 0F INvESTIuATI0N CELL0LAR ANALYSIS S0RvEY TEAN Cellulai Analysis Foi
NATRIX Special Agent Baviu N Nagnuson FBI Cellulai Analysis Suivey Team CAST }une 1 Case 0:11-cr-60285-RSR Document 778-5 Entered on FLSD Docket 06/09/2013 Page 1 of 4 An analysis was conuucteu of the below cell phone iecoius foi the ti i u f PNt PN A l ti t i time peiiou on fiom PN to PN A location matiix anuoi mapping solution was piepaieu to show the location of these cell phones uuiing this time fiame N0SS BR0WN No iecoius available NABIS0N B BAvIS WILLIANS }0BNS0N Case 0:11-cr-60285-RSR Document 778-5 Entered on FLSD Docket 06/09/2013 Page 2 of 4 LOCATIONMATRIXFOR7/26/2010FROM12:00PMTO2:00PM MOSS DAVIS MADISON WILLIAMS JOHNSON BROWN Locatedin Lighthouse Pointnear Located near residenceat 9:16AM. Locatedin areaofBank ofAmerica in Locatednear D.DAVIS residenceat Analysis revealsno datafrom No Location Data. Bankof Americaat 12:06PM and12:09 PM Located Connectsto towerin Lighthouse Pointat 12:23 PM Lighthouse Pointat1:56 PM. Thereafter travels south 8:47Amand 9:23AM. WILLIAMS receives2calls from 8:44AM through6:07 PM. Phonewas located in PM.Located nearbarber shopfrom 5:10PMto 6:29PMand 12:23PM. Connectsto towerback near residenceat travelssouth toareanear DarylDAVIS residence. Hasseveral from MADISONs phoneat1:58 PM.No locationdata locatedin OpaLocka beforeand afterthistime period.Makes thenagain from9:25 PMto10:50 PM.Makes 20 calls with 3:06PM.Has severalcalls withBROWN andvery high volume callswith BROWNand DAVIS.See mapping solutions. after9:23AM until9:24PM. Seemapping solutions. severalcalls with WILLIAMS girlfriend. 20callswith BROWNon thisdate. Seemapping solutions. highvolume ofcallsfrom MADISON. Seemapping solutions. solutions. hisdate. Case 0:11-cr-60285-RSR Document 778-5 Entered on FLSD Docket 06/09/2013 Page 3 of 4 END OF REPORT ENDOFREPORT 4 Case 0:11-cr-60285-RSR Document 778-5 Entered on FLSD Docket 06/09/2013 Page 4 of 4