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United States v. Kumara

United States District Court, E.D. Virginia, Alexandria Division

May 30, 2017

MUSA KUMARA, Defendant.



         This matter is before the Court on Defendant Musa Kamara's (“Defendant”) Motion for a Bill of Particulars. [Dkt. 39.] Defendant's Motion to Suppress Evidence [Dkt. 51] and Motion for Discovery [Dkt. 50] are also before the Court. For the following reasons, the Court will deny the motion for a bill of particulars. The Court will also deny Defendant's motion to suppress and his motion for discovery.

         I. Background

         On April 13, 2017, a grand jury returned an indictment that charged Defendant with conspiracy to commit wire and bank fraud and conspiracy to commit access device fraud. Indictment [Dkt. 19]. On May 11, 2017, the grand jury returned a superseding indictment that added ten substantive counts to the two conspiracy counts already alleged, including two counts of Aggravated Identity Theft against Defendant. Superseding Indictment [Dkt. 47]. The superseding indictment alleges that between January 2014 and April 2017, Defendant conspired with others to purchase stolen credit card numbers online, encode those numbers onto physical cards, and use those cards to make fraudulent purchases. See Superseding Indictment [Dkt. 47], ¶ 11. More specifically, the superseding indictment alleges that Defendant received emails from a co-conspirator on at least two occasions with stolen credit card numbers, exchanged text messages with two different co-conspirators regarding the use of re-encoded cards, and possessed at least three re-encoded cards when he was arrested in Washington, D.C. Id., ¶ 12. In addition, the superseding indictment alleges that Defendant unlawfully transferred, possessed, or used L.L.'s Capital One payment card ending in 8856 and S.E.'s Citibank payment card ending in 5175. Id., ¶ 31.

         With a few exceptions, [1] both parties have filed pleadings and responsive materials for all three motions. Oral argument was held on May 25, 2017. These matters are now ripe for disposition.

         II. Legal Standard

         A. Motion for a Bill of Particulars

         Under Federal Rule of Criminal Procedure 7(f), the court “may direct the government to file a bill of particulars.” Fed. Rule Crim. P. 7(f). The decision to grant or deny a motion for a bill of particulars rests with the sound discretion of the trial court. United States v. Anderson, 481 F.2d 685, 690 (4th Cir. 1973). The purpose of a bill of particulars is to “supply any essential detail which may have been omitted from the indictment, ” id. at 691, but the Government need not “provide detailed disclosure of the government's evidence in advance of trial, ” United States v. Automated Med. Labs., Inc., 770 F.2d 399, 406 (4th Cir. 1985). The ultimate test is whether “deprivation of the information sought will render the defendant subject to unfair surprise.” United States v. Sampson, 448 F.Supp.2d 692, 696 (E.D. Va. 2006) (citing United States v. Fletcher, 74 F.3d 49, 53 (4th Cir. 1996)).

         B. Motion to Suppress

         The Fourth Amendment requires that all searches and seizures be supported by a warrant based on probable cause. See Katz v. United States, 389 U.S. 347, 357 (1967). Probable cause “is a fluid concept-turning on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232 (1983). Probable cause determinations are based on the “totality of the circumstances” of each case. Maryland v. Pringle, 540 U.S. 366, 371 (2003). Probable cause is found “where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.” Ornelas v. United States, 517 U.S. 690, 696 (1996).

         A court reviewing a magistrate's determination of probable cause does not assess the existence of probable cause de novo. Instead, the court's task is to ascertain whether the magistrate had a substantial basis for concluding that probable cause existed. Gates, 462 U.S. at 238-39. In doing so, courts are to give the magistrate's determination “great deference.” Id. at 236. In addition, courts should not invalidate warrants by interpreting affidavits in a “hypertechnical, rather than a commonsense, manner.” Id.; see also United States v. Gary, 420 F.Supp.2d 470, 476 (E.D. Va. 2006). To assess a magistrate's finding of probable cause, a reviewing court may look only at the evidence provided to the magistrate, as well as any reasonable inferences that may be drawn therefrom. Gates, 462 U.S. at 235.

         C. Motion for Discovery

         Federal Rule of Criminal Procedure 16 states that “the government must provide to the defendant” a list of items prior to trial, including: (1) defendant's oral statements; (2) defendant's written or recorded statements; (3) defendant's prior criminal record; (4) any documents or objects that may be material to the defense, may be used in the Government's case-in-chief, or may belong to the defendant; (5) the results of any examinations and tests that the Government has in its possession or knows exist and that may be material to the defense; and (6) a written summary of potential testimony from expert witnesses. See Fed. R. Crim. P. 16(a)(1)(A)-(G). It also makes clear that “[a]t any time the court may, for good cause, deny, restrict, or defer discovery or inspection, or grant other appropriate relief.” Id. 16(d)(1).

         In addition to the Federal Rules, “due process requires that the Government disclose to the accused any favorable evidence in its possession that is material to guilt or punishment.” United States v. Beckford, 962 F.Supp. 780, 785 (E.D. Va. 1997) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). Favorable evidence includes both exculpatory evidence and evidence that may be used to impeach Government witnesses. See United States v. Bagley, 473 U.S. 667, 676 (1985); see also Giglio v. United States, 405 U.S. 150, 154 (1972). Such evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Bagley, 473 U.S. at 682.

         In fulfilling its Brady obligations, “the Government must actively search out the requested material in its files and in the files of related agencies reasonably expected to have possession of such information.” Beckford, 962 F.Supp. at 785 (citing Kyles v. Whitley, 514 U.S. 419 (1995); United States v. Agurs, 427 U.S. 97 (1976) (holding that a defendant's failure to request favorable evidence did not leave the Government free of all obligation to disclose Brady material)). “However, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial.” Id. (citing Bagley, 473 U.S. at 675).

         III. ...

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