u.s. vs. terrance brown, motion to compel nsa phone records

SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 11-cr-60285-RSR

UNITED STATES OF AMERICA, Plaintiff, vs. TERRANCE BROWN, Defendant. ___________________________________/

MOTION TO COMPEL PRODUCTION OF PHONE RECORDS

Terrence Brown, by and through undersigned counsel, hereby moves this Court order the

government to produce certain call records for Mr. Brown, and states:

The government’s 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 Brink’s 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. Brown’s: 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the records MetroPCS no longer maintained them), the government instead uses Nathanial

Moss’s, or other cell phone records as evidence of Mr. Brown’s 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. That’s 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 people’s names, and they’re 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 we’ve been hearing over the last day or so -- nobody is listening to the content of people's phone calls. This

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

President’s 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 defendant’s request, the government must permit the defendant to inspect

and to copy…documents, data…or copies or portions of any of these items, if the item is within

the government’s possession, custody, or control and: (i) the item is material to preparing the

defense…” The records for the two telephone numbers are in the government’s 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

issued pursuant to an FBI affidavit. The FBI is a member of this prosecution team, as is the

Attorney General’s 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 government’s

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.

Brown’s 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

government’s 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.

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: mdl@sinclairlouis.com

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: mdl@sinclairlouis.com

SERVICE LIST

Michael E. Gilfarb

Mark Dispoto

99 Northeast 4th Street Miami, Florida 33132-2111 Facsimile: 305-536-4676 Email: michael.gilfarb@usdoj.gov Email: mark.dispoto@usdoj.gov (Via CM/ECF Electronic Notification)

Attorneys for the United States of America

Gennaro Cariglio, Jr.

10800 Biscayne Boulevard Suite 900 Miami, FL 33161-7400 305-899-0438 Fax: 891-2297 Email: Sobeachlaw@aol.com (Via CM/ECF Electronic Notification) Attorney for Toriano Johnson

Martin L. Roth

101 N.E. Third Avenue Suite 1430 Fort Lauderdale, FL 33301 954-745-7697 Fax: 745-7698 Email: MLRPA@msn.com (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: mseitles@seitleslaw.com (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: DavidJJoffe@aol.com

(Via CM/ECF Electronic Notification) Attorney for Joseph K. Simmons

Case 0:11-cr-60285-RSR Document 778-1 Entered on FLSD Docket 06/09/2013 Page 1 of 5

LOCATION MATRIX FOR 7/10/2010 FROM 3:55 AM TO 5:24 AM

MOSS BROWN MADISON DAVIS WILLIAMS JOHNSON

LOCATION MATRIX FOR 7/10/2010 FROM 3:55 AM TO 5:24 AM

MOSS BROWN MADISON DAVIS WILLIAMS JOHNSONAt TheftSite inRoyalPalm

No LocationData. Buthas 18 callswith MOSS

No LocationData. Buthas 5 callswith MOSS

No LocationData from2:42 AMthrough

Located inMiramar, FL

Located inOpa Locka,

FLPalmBeach

with MOSSfrom 12:40AM through8:13 AM.

with MOSSbetween3:55 AM

through 5:23AM.

through8:46 AM.Availabledata showsat work priorand homeafter.

On 7/10/2010 from 3:55 AM until 5:23 AMMOSS has 5 consecutivecalls with (754) 234 7001 (MADISON) while utilizing sector 1927 37549

(shown below). MOSS also has several calls with (786) 307 4240(shown below). MOSS also has several calls with (786) 307 4240(BROWN) while in the vicinity of Royal Palm Beach, FL.

1927 37549

104 Country Club WayRoyal Palm Beach, FL

END OF REPORTEND OF REPORT

LOCATION MATRIX FOR 7/12/2010 FROM 12:49 AMTO 6:41 AM

TO 6:41 AM

At 5:31 AMin sectorcoveringthe vicinityof theft

No records forthat time frame.But MOSS�’srecords showBROWN talking

No LocationData. But has2 calls withMOSS at 12:49AM and 6:11

MiamiGardens, FLat 6:47 AM.No dataavailable

Located inMiramar, FLbut has 3 callswith MOSS at6:03 AM; 6:22

Located in OpaLocka, FL. Nolocation datafrom 10:24 PMon 7/11/10of theft

site.BROWN talkingwith MOSS at5:31 AMand 6:17 AM on7/12/10.

AM and 6:11AM.

availableprior in themorning.

6:03 AM; 6:22AM and 6:41AM.

on 7/11/10through 10:32AM on 7/12/10.

480 Sherwood Forest DriveDeerfield Beach, FLStolen Infinity SUV

On 7/12/2010 at 5:31AM MOSS places a 19minute call to (786) 3074240 (T. BROWN) whilein the sector shown.

On 7/12/2010 at 6:03AMMOSS places a callto (786) 299 1565 (H.WILLIAMS) while in thesector shown.

On 7/12/2010 at 6:11AM MOSS places a callto (754) 234 7001 (B.MADISON) while in thesector shown.

Location of (954) 243 2836 (JOHNSON) from 10:24 PM on 7/11/2010 to12:07 PM on 7/12/2010 (stationary)

20411 NW 2 CourtMiami Gardens, FLT. BROWN�’s Residence

1442 37425

On 7/12/2010 at 9:09 AMMOSS receives a call from(786) 307 4240 (T. BROWN)while in the sector shown.Vicinity of T. BROWN�’sResidence.

19000 NW 8 Avenue19000 NW 8 AvenueMiami , FLD. DAVIS�’ Residence

1905 58486

On 7/12/2010 at 12:34PMMOSS receives a callfrom (954) 305 1469(Unknown Subscriber)while in the sectorshown (vicinity of D.DAVIS�’s residence).

LOCATION MATRIX FOR 7/19/2010 FROM 12:00 PMTO 2:00 PM.

Li h h N d L d i L d i L d i h Li h h P iLighthousePoint, FL at1:00 PM. Seemappingsolution.

No recordsfor that timeframe. ButMOSS�’records show

Located inMiamiGardens areaat 10:18 AMand then

Located inAventura andN. Miami areaFrom 12:21PM through

Located in theMiramar andMiami Gardensarea during thisperiod.

Lighthouse Point,FL at 1:03 PM.JOHNSON callsMOSS at 9:22 AM;9:23 AM and 9:41

BROWNtalking withMOSS at9:08 AM,2:25 PM and

again at 3:04PM. No datain betweenthese times.Communicat

g1:51 PM

pAM. See mappingsolution.

2:25 PM, and6:19 PM.

Communicates withBROWNseveral timesthis day.

(786) 258 6024(MOSS) located inthis sector at 1:00PM on 7/19/2010./ /

1910 24627

Bank of America2800 N. Federal Highway

NOTE: The only other time MOSS�’ phone connects to this tower/sector is on 7/26/2010 at12:06:56 PM and 12:09:04 PM. Over 12,500 calls were analyzed over a 9 month period.

(954) 243 2836(954) 243 2836(JOHNSON) locatedin this sector at 1:03PM on 7/19/2010.1910 24627

Bank of America2800 N. Federal Highway

NOTE: JOHNSON�’s phone connects to this particular tower/sector only on one other occasion(7/14/2010 at 11:00 AM), out of over 16,000 calls analyzed over a 1 ½ year period.

LOCATION MATRIX FOR 7/21/2010 FROM 1:00 PMTHROUGH 3:00 PM DURING THE CASING OF BRINK�’SARMORED TRUCK AT BANK OF AMERICA LOCATED IN

LIGHTHOUSE POINT, FL.

MOSS DAVIS MADISON WILLIAMS JOHNSON BROWNLocated 4miles

Located inMiami

Located inTamarac, FL

Located in theMiami Gardens

Located inOpa Locka

No recordsfor this time

south ofBank ofAmerica,

inLighthouse

Gardens areaat 3:29 PM.No locationdata availablefrom 5:32 AMthrough 3:13

,area during the1:00 PM to3:00 PM timeperiod but has6 calls with

and N. MiamiBeach areaduring thisperiod.

Opa Locka,FL at 9:06AM and

Hollywood,FL at 3:36

frame. Has 6calls withMADISON.

LighthousePoint, FL at2:28 PM.

Seemapping

through 3:13PM on

7/21/2010.

6 calls withBROWN during

this timeframe.

FL at 3:36PM. No

location datafor theperiod

solution.period

analyzed.

Bank of AmericaBank of America2800 N. Federal Highway

(786) 258 6024(786) 258 6024(MOSS) located inthis sector at 2:28PM on 7/21/2010.

1910 17020

NOTE: MOSS�’ phone connects to this particular tower/sector only on this occasion, out of over12,500 calls analyzed over a 9 month period.

LOCATION MATRIX FOR 7/26/2010 FROM 12:00 PM TO 2:00 PM

MOSS DAVIS MADISON WILLIAMS JOHNSON BROWNLocated inLighthousePoint near

Located nearresidence at9:16 AM.

Located inarea of Bankof America in

Located nearD. DAVIS�’

residence at

Analysisreveals nodata from

NoLocationData.

Bank ofAmerica at12:06 PMand 12:09PM Located

Connects totower in

LighthousePoint at12:23 PM

LighthousePoint at 1:56

PM.Thereaftertravels south

8:47 Am and9:23 AM.WILLIAMS

receives 2 callsfrom

8:44 AMthrough 6:07

PM.Phone waslocated inPM. Located

near barbershop from5:10 PM to6:29 PM and

12:23 PM.Connects totower back

nearresidence at

travels southto area nearDaryl DAVIS�’residence.Has several

fromMADISON�’sphone at 1:58

PM. Nolocation data

located inOpa Lockabefore and

after this timeperiod. Makes

then againfrom 9:25PM to 10:50PM. Makes20 calls with

3:06 PM. Hasseveral callswith BROWNand very

high volume

calls withBROWN andDAVIS. Seemappingsolutions.

after 9:23 AMuntil 9:24 PM.See mappingsolutions.

several callswith

WILLIAMS�’girlfriend.

20 calls withBROWN onthis date.

See mappingsolutions.

high volumeof calls fromMADISON.See mappingsolutions.

solutions.his date.

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