u.s. vs. terrance brown, motion to compel nsa phone records
DESCRIPTION
A motion filed by a Florida attorney asking a court to force the National Security Agency to produce phone records that could prove a man's innocence.TRANSCRIPT
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:
FACTS
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
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the records MetroPCS no longer maintained them), the government instead uses Nathanial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
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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
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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.
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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]
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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)
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: [email protected] (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: [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
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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.
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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
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LOCATION MATRIX FOR 7/12/2010 FROM 12:49 AMTO 6:41 AM
MOSS BROWN MADISON DAVIS WILLIAMS JOHNSON
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.
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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.
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On 7/12/2010 at 6:03AMMOSS places a callto (786) 299 1565 (H.WILLIAMS) while in thesector shown.
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On 7/12/2010 at 6:11AM MOSS places a callto (754) 234 7001 (B.MADISON) while in thesector shown.
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Location of (954) 243 2836 (JOHNSON) from 10:24 PM on 7/11/2010 to12:07 PM on 7/12/2010 (stationary)
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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.
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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).
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LOCATION MATRIX FOR 7/19/2010 FROM 12:00 PMTO 2:00 PM.
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 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.
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(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.
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(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.
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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.
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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.
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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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