United States v. Milligan

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UNITED STATES OF AMERICA, Plaintiff, v. ANTHONY ROY MILLIGAN JR., Defendant.

No. 20-cr-20134

United States District Court, E.D. Michigan, Southern Division

October 27, 2023

OPINION & ORDER (1) DENYING MILLIGAN'S MOTIONS IN LIMINE (DKTS. 123, 125, 126, 127, 149) & (2) GRANTING THE GOVERNMENT'S CONSOLIDATE MOTION IN LIMINE (DKT. 129)

MARK A. GOLDSMITH, United States District Judge.

Defendant Anthony Milligan is charged with one count of conspiracy to possess with intent to distribute heroin and methamphetamine under 21 U.S.C §§ 841, 846, and a second count of possession with intent to distribute heroin under § 841(a)(1). Superseding Indictment (Dkt. 16).

The parties have filed a number of motions in limine. Milligan has filed five motions in limine to preclude admission of evidence of (i) an Internet Protocol (IP) address allegedly associated with Milligan (Dkt. 123), (ii) a package discovered en route to Pontiac, Michigan (Dkt. 125), (iii) certain text messages and phone contents (Dkt. 126), (iv) location data (Dkt. 127), and (v) Milligan's Facebook messages contained in proposed Government exhibit 29A/4 (Dkt 149). For its part, the Government has filed a consolidated motion in limine (Dkt. 129) to preclude four categories of evidence or argument: (i) encouraging jury nullification (ii) regarding Government charging decisions, (iii) concerning collateral consequences associated with a conviction, and (iv) improperly characterizing the Government's burden of proof.

For the reasons that follow, the Court denies Milligan's motions in their entirety and grants the Government's consolidated motion in its entirety.^[1]

I. ANALYSIS

The Court proceeds by addressing Milligan's motions in limine and then addresses the Government's consolidated motion.

A Milligan's Motions in Limine

Milligan moves to preclude (i) reference to an IP address allegedly associated with Milligan, (ii) evidence related to a package discovered en route to Pontiac, Michigan, (iii) certain text messages and contents from Valerie Williams's phone, (iv) location data derived from a subpoena of Verizon Wireless, and (v) Milligan's Facebook messages contained in proposed Government exhibit 29A/4. The Court addresses each motion in turn.

1. Reference to IP Address

Milligan seeks to preclude the Government from referencing an IP address used to track a package allegedly containing a kilogram of heroin that was addressed to Anthony Williams at 2 Wenonah Drive, Pontiac, Michigan (Wenonah Package). Milligan Mot. to Preclude IP Address ¶ 3; Gov't Resp. at 1-2.

According to the parties' briefing, after the Government seized the package, a Postal Service Intelligence Specialist identified three IP addresses used to track the package on the United States Postal Service (USPS) website. Gov't Resp. at 2; Milligan Mot. to Preclude IP Address ¶¶ 3-4. The Government then subpoenaed Verizon Wireless to identify the device assigned to those IP addresses and Verizon's response to the subpoenas indicated that the IP address was used by a phone associated with Milligan. Br. Supp. Mot. to Preclude IP Address at PageID.819; Gov't Resp. at 2.

Milligan argues that the Government was required to obtain a warrant before obtaining the IP address because he had a “legitimate expectation of privacy in the IP address” under the Fourth Amendment. Br. Supp. Mot. to Preclude IP Address at PageID.819-820.

The Government responds that there was “no Fourth Amendment intrusion . . . rather, the user [of the IP address] gave this information to USPS.” Gov't Resp. at 3. It further argues that, as a general matter, Milligan does not maintain a reasonable expectation of privacy in his IP address. Id. at 4. The Government also points out that it obtained information associated with the IP address-such as the subscriber's “name, address, billing details, etc.”-from Verizon. Id. at 5. Thus, the Government argues, under the “third party doctrine,” Milligan has no expectation of privacy in “information he voluntarily turns over to third parties” like Verizon and the USPS. Id. (quoting Smith v. Maryland, 442 U.S. 735, 743-744 (1979)).

The Court agrees with the Government. The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. “[A] person contending that a search violated his or her Fourth Amendment rights must first demonstrate that he or she had a legitimate expectation of privacy in the premises searched that ‘society is prepared to recognize as reasonable.'” United States v. Mills, 357 F.Supp.3d 634, 642 (E.D. Mich. 2019) (quoting Carpenter v. United States, 138 S.Ct. 2206, 2213 (2018)). Under the “third-party doctrine,” a “person has no legitimate expectation of privacy in information voluntarily turned over to third parties.” United States v. Maclin, 393 F.Supp.3d 701, 708 (N.D. Ohio 2019) (punctuation modified) (quoting Carpenter, 138 S.Ct. at 2216).

United States v. Felton, a case with almost identical facts as those at issue here, is instructive. 367 F.Supp.3d 569, 574 (W.D. La. 2019). In Felton, USPS informed law enforcement of suspicious packages that were later found to contain methamphetamine. Id. at 571-572. In the course of investigating the packages, law enforcement identified an IP address owned by internet service provider, Comcast, that was used to track the packages while they were in transit. Id. After receiving a subpoena from law enforcement regarding the IP address, Comcast provided the subscriber information records associated with that IP address, revealing that the IP address was used by the defendant. Id. The defendant moved to suppress the records, arguing that Government's efforts to obtain information regarding his IP address from USPS and Comcast without a warrant violated his Fourth Amendment rights. Id. at 573. Rejecting the defendant's argument, the Court explained that “the IP address and tracking logs obtained from the USPS and Comcast were not owned, nor possessed by [the defendant],” and that he did not have reasonable expectation of privacy, given that the Government obtained such information from third-parties Comcast and USPS. Id. at 574.

Like the defendant in Felton, Milligan abandoned any reasonable expectation of privacy in his IP address when he utilized the USPS website to track the package. By providing his IP address to USPS through the use of its site, he “voluntarily turned over” that information to USPS and cannot maintain a legitimate expectation of privacy in the IP address when the Government then obtains information associated with that IP address from Verizon.

Resisting this conclusion, Milligan points to United States v. Kahler, for the proposition that the Government's warrantless collection of a user's IP address amounts to a Fourth Amendment violation. Br. Supp. Mot. to Preclude IP Address at PageID.820 (citing 236 F.Supp.3d 1009 (E.D. Mich. 2017)). But as the Government points out, see Gov't Resp. at 4, Kahler analyzed the Fourth Amendment implications of a Government sting operation in which the Government took control of a website distributing child pornography website to obtain the IP addresses of users who attempted to keep such addresses hidden. Kahler, 236 F.Supp.3d at 1021. In rejecting the Government's argument that users lacked reasonable expectations of privacy, the Kahler court explained that “[l]aw enforcement, acting alone, may not coerce the computers of internet users into revealing identifying information without a warrant, at least when the user has taken affirmative steps to ensure that third parties do not have that information.” Id.

Unlike the defendant in Kahler who took steps to conceal his identity, Milligan failed to take any steps to conceal his IP address. Nor did the Government coerce Milligan into revealing his IP address. Instead, Milligan freely turned over the IP address to the USPS by utilizing its website to track the package. No reasonable expectation of privacy attaches under such circumstances.

Because Milligan lacks a reasonable expectation of privacy in his IP address where the Government obtained the address from the USPS website, the Court denies Milligan's motion in limine to prohibit reference to the IP address at trial.

2. Wenonah Package

Milligan moves to prevent admission of the package discovered en route to the home located at 2 Wenonah Drive in Pontiac, Michigan on the grounds that the Government “cannot meet the authentication burdens” of Federal Rule of Evidence 901 to admit the package. Br. Supp. Mot. to Prohibit Admission of Wenonah Package at PageID.832. Milligan submits that the Wenonah package “disappeared for a time” after it was intercepted by the USPS and that he was not provided with a chain of custody. Mot. to Prohibit Admission of Wenonah Package ¶¶ 3-8.

In response, the Government contends that Milligan's counsel has inspected and photographed the Wenonah package and has been provided with the United States Postal Inspection Service (USPIS) Evidence Tracking History report documenting its chain of custody. Gov't Resp. at 6. The Government further submits that it anticipates calling witnesses from the USPIS who will testify to the authenticity and chain of custody of the Wenonah package. Id. at 6-7.

Given the Government's stated intention to call witnesses who can testify at trial regarding the chain of custody and authenticity of the Wenonah package, the Court will deny Milligan's motion without prejudice. He may reassert his objection to the admission of the Wenonah package should his concerns regarding the authenticity of the package remain after the Government's USPIS witnesses have...