United States v. Valdez

UNITED STATES OF AMERICA, Plaintiff, v. VALDEZ, Defendant.

1:20-cr-00115-ALC-3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

April 9, 2021

AMENDED OPINION AND ORDER

ANDREW L. CARTER, JR., United States District Judge:

The Court now considers pretrial motions from Defendant Cristian Valdez, who, with co-Defendants Jose Recio-Rondon and Ronald Soriano, is charged with various counts arising from a November 13, 2019 incident. Specifically, the Defendants are charged with conspiracy to commit Hobbs Act Robbery in violation of 18 U.S.C. §1951, (Count One); attempted Hobbs Act Robbery in violation of 18 U.S.C. §1951-2, (Count Two); and using, carrying and possessing a firearm during the commission of Count Two, in violation of §924(c)(1)(A)(i)-(ii), (2), (Count Three). Valdez moves to (1) suppress the fruits of two warrants for cellular phone data, arguing that the applications for such warrants did not establish probable cause; (2) dismiss Counts One and Two because they fail to state a Hobbs Act Robbery, pursuant to 18 U.S.C. §1951(b)(1); and (3) dismiss Count Three, regardless of the disposition of Count Two, because an attempted Hobbs Act Robbery is not a "crime of violence" pursuant to 18 U.S.C. §924(c)(A).

For the reasons that follow, the Court GRANTS Valdez's motion to dismiss Count Three because attempted Hobbs Act robbery is not a "crime of violence" pursuant to 18 U.S.C. §924(c)(A). However, the Court concludes the remainder of Valdez's motion is without merit; it is therefore DENIED.

BACKGROUND

The Court reviews the background of this matter by way of the Affidavits of Drug Enforcement Administration ("DEA") Special Agent James Lowndes ("SA Lowndes"). SA Lowndes was involved in the investigation preceding this matter and his Affidavits, dated December 2, 2019 (First Lowndes Affidavit) and December 6, 2019 (Second Lowndes Affidavit), were filed in support of applications for warrants for cell phone data, which were granted by Magistrate Judge Barbara Moses on those same dates, and which Valdez now challenges. Because Valdez also challenges the sufficiency of the Indictment, the Court summarizes the charges therein as well.

1. Warrants

As set forth in the First Lowndes Affidavit, SA Lowndes and others were investigating a drug trafficking organization that purchases narcotics, including heroin and fentanyl, for distribution in the New York City area. Dkt. 37-1 ¶ 7. Recio-Rondon and Soriano were Target Subjects of that investigation. Dkt. 37-1 ¶ 7.

In or around November 2019, a confidential source, CS-1, and a Source of Information, SOI-1, made contact with a person, later identified as Recio-Rondon, to arrange the sale of approximately 200 fentanyl pills. Dkt. 37-1 ¶ 7a. On or about November 13, 2019, CS-1 and SOI-1 met Recio-Rondon in Manhattan, where he told them he had sold his supply of fentanyl pills, but offered to sell CS-1 and SOI-1 two kilograms of heroin. Dkt. 37-1 ¶ 7b. Several hours later, CS-1 and SOI-1, at the direction of law enforcement, met Recio-Rondon in the Bronx, and toldhim they would proceed with the purchase of the heroin. Dkt. 37-1 ¶ 7c. Recio-Rondon told them that he was waiting for two individuals to complete the transaction. Dkt. 37-1 ¶ 7c.

At approximately 9:15 p.m., Recio-Rondon, a man later identified as Soriano, and a then-unknown third individual met with CS-1 and SOI-1. Dkt. 37-1 ¶ 7c. While CS-1 waited in a car outside, the others went inside an apartment building. Dkt. 37-1 ¶ 7c. Soriano beat SOI-1 with a pistol and the unknown third individual stabbed SOI-1 with a knife. Dkt. 37-1 ¶ 7c. After that, Soriano approached CS-1 while seated in his vehicle and threatened him. Dkt. 37-1 ¶ 7d. But, the surveilling law enforcement approached the vehicle and tried to apprehend Soriano. Dkt. 37-1 ¶ 7d. Soriano took off running, and law enforcement recovered a pistol and folding knife he discarded. Dkt. 37-1 ¶ 7d. Recio-Rondon and Soriano were identified, apprehended, and arrested. Dkt. 37-1 ¶ 7d. They were charged by a complaint filed November 14, 2019.

The First Lowndes Affidavit further explains that law enforcement used toll records to identify several cellular telephones of interest, which were Target Cellphones of the December 2, 2019 Warrant Application. The Target Cellphones include those associated with cellular telephone numbers 646-578-5043 (Target Cellphone-1) and 646-578-0417 (Target Cellphone-2), believed to belong to Valdez. Dkt. 37-1 ¶ 4.¹ The warrant also sought information regarding a cellphone that was seized from Soriano at the time of his arrest, Target Cellphone-3, assigned the number 929-476-9164. Dkt. 37-1 ¶¶ 4, 9a.

On or about November 13, 2019, between approximately 8:09 p.m. and 8:48 p.m., Target Cellphone-1 and Target Cellphone-3 communicated with one another approximately 7 times. Dkt. 37-1 ¶ 9b. After November 16, 2019, there were no calls placed from Target Cellphone-1. Dkt. 37-1 ¶ 9b. On or about November 16, 2019, Target Cell-Phone 2 began to receive numbers from four of the five numbers that communicated with Target Cellphone-1. Dkt. 37-1 ¶ 9.d. SA Lowndes opined based on his training, experience, and involvement with the investigation, that this indicated that the user of Target Cellphone-1 "dropped" or stopped using Target Cellphone-1 and started using Target Cellphone-2. Dkt. 37-1 ¶ 9.c.

Based on the foregoing, the First Lowndes Affidavit submitted to the court that there was probable cause to believe that Valdez was the user of Target Cellphone-1 and Target Cellphone-2, and Soriano was the user of Target Cell-Phone 3; that the Target Cellphones were used in furtherance of the November 13, 2019 incident; and that the location data associated with the Target Cellphones would, inter alia, identify Valdez's location during the incident as well as his present location. Dkt. 37-1 ¶ 10.

On December 2, 2019, MJ Moses granted the application by a Warrant and Order for Historical Cellphone Location Information and for Sealing and Non-Disclosure. Therein, MJ Moses concluded that the Government's application set forth probable cause to believe that the location information for the Target Cellphones would reveal evidence, fruits, or instrumentalities of various suspected crimes, and was relevant and material to an ongoing criminal investigation. Dkt. 37-2 ¶ 2-3.

On December 6, 2019, the Government made another application for a warrant supported by the Second Lowndes Affidavit. The Second Lowndes Affidavit relied on the allegations set forth in the First Lowndes Affidavit, as well as proceeds of the December 2, 2019 Warrant issuedby MJ Moses. In particular, SA Lowndes set forth further location data indicating that Target Cellphones-2 and -3 had been in the vicinity of the November 13, 2019 incident around 9 p.m. Dkt. 37-3 ¶¶ 12a-b. Based on that information, the Government sought further data about Target Cellphone-2, including prospective precision location and cell site data, historical cell site data and toll records, and prospective pen register information. Dkt. 37-3 ¶ 14. MJ Moses again found probable cause to grant the application. On December 6, 2019, MJ Moses issued a Warrant and Order for Cellphone Location Information and Pen Register Information and for Sealing and Non-Disclosure. ECF No. 37-4.

2. Indictment

Valdez was arrested on December 11, 2019. By an Indictment filed on February 6, 2020, Valdez, Seriano, and Recio-Rondon were charged with three counts. Count One, Conspiracy to Commit Hobbs Act Robbery, charges:

On or about November 13, 2019, in the Southern District of New York and elsewhere, JOSE RECIO-RONDON, RONALD SORIANO, and CRISTIAN VALDEZ, the defendants, and others known and unknown, did knowingly combine, conspire, confederate and agree together and with each other, to commit robbery, as that term is defined in Title 18, United States Code, Section 1951(b) (1), and would and did thereby obstruct, delay, and affect commerce and the movement of articles and commodities in commerce, as that term is defined in Title 18, United States Code, Section 1951(b) (3), to wit, RECIO-RONDON, SORIANO, and VALDEZ conspired to commit the armed robbery of an individual they believed to be a narcotics dealer in the Bronx, New York.

Dkt. 14 ¶ 1.

Count Two, Attempted Hobbs Act Robbery, charges:

On or about November 13, 2019, in the Southern District of New York and elsewhere, JOSE RECIO-RONDON, RONALD SORIANO, and CRISTIAN VALDEZ, the defendants, did knowingly attempt to commit robbery, as that term is defined in Title 18, United States Code, Section 195l(b)(1), and did thereby obstruct, delay, and affect commerce and the movement of articles and commodities in commerce, as that term is defined in Title 18, United States Code, Section 195l(b) (3), to wit, RECIO-RONDON,SORIANO, and VALDEZ attempted to commit an armed robbery of an individual they believed to be a narcotics dealer in the Bronx, New York.

Dkt. 14 ¶ 2.

Count Three, Firearms Use, Carrying, and Possession, charges:

On or about November 13, 2019, in the Southern District of New York and elsewhere, JOSE RECIO-RONDON, RONALD SORIANO, and CRISTIAN VALDEZ, the defendants, during and in relation to a crime of violence for which he may be prosecuted in a court of the United States, namely, the attempted robbery charged in Count Two of this Indictment, knowingly did use and carry a firearm, and, in furtherance of such crime, did possess a firearm, and did aid and abet the use, carrying, and possession of a firearm, which was brandished.

Dkt. 14 ¶ 3.

DISCUSSION

1. Motion to Suppress

Valdez asks the Court to exclude any evidence arising from the December 2, 2019 and December 6, 2019 Warrants because MJ Moses lacked a substantial basis to find probable cause for issuance of the Warrants. According to Valdez, the Lowndes Affidavits are insufficient to support an inference that the Target Cellphones were used in furtherance of the November 13, 2019 incident, as opposed to an unrelated purpose. He...