United States v. Brewster

UNITED STATES OF AMERICA v. CAMERON BREWSTER, CHAD ALLEN, and JENNIFER SHAH, Defendants.

No. 19-Cr-833 (SHS)

United States District Court, S.D. New York

August 5, 2021

OPINION & ORDER

SIDNEY H. STEIN, U.S. District Judge.

The indictment in this action charges 13 defendants with participating in an extensive, long-running telemarketing fraud conspiracy that sold millions of dollars of essentially nonexistent services and products to elderly, unsophisticated consumers. (ECF Nos. 1, 186.) Two defendants-Cameron Brewster and Jennifer Shah-have now made omnibus pretrial motions requesting a variety of relief.^[1] The Court heard oral argument on July 23 and now renders its decision on those motions.

Brewster7s motion sought an order (1) compelling the government to provide a bill of particulars, (2) suppressing evidence derived from the execution of two search warrants, (3) suppressing recorded telephone calls involving Brewster and a cooperating witness or, in the alternative, an order that the government produce all discovery concerning the circumstances of those calls and to conduct an evidentiary hearing to determine whether these calls were lawfully secured, (4) compelling the government to produce immediately Brady Giglio, and Jencks Act material, and (5) compelling the disclosure of grand jury testimony. (ECF Nos. 114, 115.)

Shah's motion sought an order (1) dismissing the superseding indictment, (2) compelling the government to provide a bill of particulars, (3) suppressing evidence seized pursuant to two search warrants, or alternatively for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), (4) granting review of the grand jury minutes, (5) compelling discovery of Brady and Giglio material, as well as the post-arrest statements of co-defendant Stuart Smith, and (6) suppressing Shah's post-arrest statements in their entirety. (ECF Nos. 259 260.)

I. DISCUSSION

A. Brewster's and Shah's Requests for a Bill of Particulars

Federal Rule of Criminal Procedure 7(f) "permits a defendant to seek a bill of particulars in order to identify with sufficient particularity the nature of the charge pending against him, thereby enabling defendant to prepare for trial, to prevent surprise, and to interpose a plea of double jeopardy should he be prosecuted a second time for the same offense." United States v. Bortnovsky, 820 F.2d 572, 574 (2d Cir. 1987) (per curiam) (citations omitted). The Court acts within its "sound discretion" when determining whether or not to grant a defendant's request for a bill of particulars. See United States v. Torres, 901 F.2d 205, 234 (2d Cir. 1990), abrogated on other grounds, United States v. House, 636 Fed.Appx. 50 (2d Cir. 2016).

Shah requests the government provide a bill of particulars specifying:

a) The alleged victims of the fraud;

b) A list of all sales floors that the government alleges were involved with Ms. Shah's activities;

c) Any alleged "business services" provided to victims;

d) The alleged co-conspirators; and e) The financial transactions the government alleges violated the money laundering statute.

(ECF No. 260 at 17-18.)

Brewster seeks a similar bill of particulars specifying:

a) The alleged misrepresentations and false promises the defendants made to victims;

b) The specific fraudulent conduct the government alleges the defendants committed;

c) A list of services or things of value defendants offered to victims; and

d) A specific allegation of Brewster's connection with the conspiracy.

(ECF No. 115 at 6-7.)

'"A bill of particulars should be required only where the charges of the indictment are so general that they do not advise the defendant of the specific acts of which he is accused.'" Tones, 901 F.2d at 234 (quoting United States v. Feola, 651 F.Supp. 1068, 1132 (S.D.N.Y. 1987), aff'd, 875 F.2d 857 (mem.)). "A bill of particulars is not a general investigative tool, a discovery7 device [, ] or a means to compel the government to disclose evidence or witnesses to be offered prior to trial." United States v. Gibson, 175 F.Supp.2d 532, 537 (S.D.N.Y. 2001) (citations omitted). "It is not the function of a bill of particulars to allow defendants to preview the evidence or theory of the government's case." Id. (citations omitted).

The Court denies Brewster and Shah's requests for a bill of particulars. "Demands for information 'with respect to where, when, and with whom the Government will charge the defendant with conspiring are routinely denied/" United States v. Lopez, No. 18-CR-736, 2019 WL 4733603, at *8 (S.D.N.Y. Sept. 27, 2019) (quoting United States v. Guerrero, 669 F.Supp.2d 417, 426 (S.D.N.Y. 2009)). Requests for specific dates the defendant joined a charged conspiracy or committed acts in furtherance of the conspiracy have also been routinely denied. United States v. Columbo, No. 4-CR-273, 2006 WL 2012511, at *5 (S.D.N.Y. July 18, 2006) (citing United States v. Nachamie, 91 F.Supp.2d 565, 574-76 (S.D.N.Y. 2000)).

Although the Court is cognizant that this case involves a high volume of discovery- one of the factors that may support requiring a bill of particulars, see United States v. Davidoff, 845 F.2d 1151, 1155 (2d Cir. 1988); Bortnovsky, 820 F.2d at 574-the government has shown that it is in the process of responding to defendants' requests for information. For example, the government has provided to the defense, among other items, 1) detailed affidavits filed in support of search warrants, outlining the charged scheme and containing excerpts from victim interviews, 2) materials provided by the FTC gathered in the course of the FTC's investigation of the telemarketing scheme at issue, 3) documents provided by victims, 4) records of sales to victims, 5) financial records showing the flow of victim funds to, among other places, accounts that the defendant controlled, 6) a copy of all exhibits, 18 U.S.C. § 3500 material, and witness statements from the trial of the related Ketabchi case, and 7) a list of 41 sales floors, fulfillment floors, and co-conspirators included in the charged scheme. (See ECF No. 290 at 24-25; Tr. dated July 23 at 38-29, 77.)

At oral argument, the defense affirmed that it would continue to relay specific discovery requests to the government and the government affirmed that it would continue to work with the defense to provide requested information. (Tr. dated July 23 at 42, 80, 8283.) Because the defense has received, and will continue to receive, information from the government that will assist them in preparing their defense, the motion to compel a bill of particulars as to all defendants is denied without prejudice. See United States v. Fea, No. 10-CR-708, 2011 WL 2119708, at *2 (S.D.N.Y. May 24, 2011) (noting that defendant's request for bill of particulars identifying victims was meritless where government had produced other discovery containing the names of putative victims); United States v. Rittweger, 259 F.Supp.2d 275, 292 (S.D.N.Y. 2003) (denying request for bill of particulars where defendants had received other discovery that they could use to determine the identities of the alleged victims).

B. Brewster's Request to Suppress Evidence Derived from Execution of Search Warrants^[2]

Brewster also moves to suppress evidence derived from two search warrants: one for Brewster's private residence, and one for 2121 East Tropicana Avenue, Studio 4, Las Vegas, Nevada. (ECF No. 115 at 7-8.) He avers that both search warrants were based on false and misleading information, including:

a) Failure to disclose that a cooperating witness-CW-3-who provided information used to support the search warrant, has been forbidden by the FTC to engage in the work-from-home telemarketing industry and was under criminal investigation for his alleged role in a drug manufacturing and distribution ring;

b) Suggestions that the co-conspirators, including Brewster, secretly referred to the website that generated lead lists of potential victims as the "Money Sucking Website," when in fact, the website itself was publicly marketed as such; and

c) An allegedly false statement that Brewster "operated" the Money Sucking Website, as opposed to being employed by it.

(ECF No. 115 at 8-16.)

Brewster also alleges that that the search warrant was defective because it relied on information provided by CW-3, who Brewster contends is an unreliable witness due to his guilty plea to federal offenses in connection with his own role operating certain fraudulent telemarketing companies. (ECF No. 115 at 15.)

The Second Circuit has held that "[a] Franks hearing is warranted if the defendant can make a preliminary showing that (a) the warrant affidavit contains a false statement, (b) the false statement was included intentionally or recklessly, and (c) the false statement was integral to the probable cause finding." United States v. Caraher, 973 F.3d 57, 62 (2d Cir. 2020) (citation omitted). "In evaluating probable cause in any given case, a judge must make a practical common-sense decision whether, given all the circumstances set forth in the affidavit before him, [] there is a fair probability that contraband or evidence of a crime will be found in a particular place/" United States v. Raymonda, 780 F.3d 105, 113 (2d Cir. 2015) (internal quotation and quotation marks omitted). "The task of a reviewing court is simply to ensure that the Totality of the circumstances' afforded the [issuing Judge] 'a substantial basis' for making the requisite probable cause determination." United States v. Clark, 638 F.3d 89, 93 (2d Cir. 2011) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).

Brewster's motion for a Franks hearing is denied because the statements and omissions he identifies in the agent affidavits were not sufficient to deprive the...