Case 0:11-cr RSR Document 778 Entered on FLSD Docket 06/09/2013 Page 1 of 6 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

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1 Case 0:11-cr RSR Document 778 Entered on FLSD Docket 06/09/2013 Page 1 of 6 UNITED STATES OF AMERICA, vs. Plaintiff, TERRANCE BROWN, Defendant. / UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 11-cr RSR 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 coconspirators 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, 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: and The first date for either of the numbers is September 1, 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 SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A.

2 Case 0:11-cr RSR Document 778 Entered on FLSD Docket 06/09/2013 Page 2 of 6 the records MetroPCS no longer maintained them), the government instead uses Nathanial Moss s, or other cell phone records as evidence of Mr.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 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 2 SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A.

3 Case 0:11-cr RSR Document 778 Entered on FLSD Docket 06/09/2013 Page 3 of 6 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 topline 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 < 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 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 3 SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A.

4 Case 0:11-cr RSR Document 778 Entered on FLSD Docket 06/09/2013 Page 4 of 6 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 and , for the month of July, 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. 4 SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A.

5 Case 0:11-cr RSR Document 778 Entered on FLSD Docket 06/09/2013 Page 5 of 6 WHEREFORE, Terrence Brown respectfully requests this Honorable Court order the government to produce the July, 2010 records for and , or in the alternative authorize the issuance of a subpoena to the NSA to obtain the same records. Respectfully Submitted, CERTIFICATE OF SERVICE s/ Marshall Dore Louis Marshall Dore Louis Florida Bar No SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A. Alfred I. dupont Building 169 East Flagler Street, Suite 1125 Miami, FL TEL: (305) FAX: (305) mdl@sinclairlouis.com 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 SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A. Alfred I. dupont Building 169 East Flagler Street, Suite 1125 Miami, FL TEL: (305) FAX: (305) mdl@sinclairlouis.com 5 SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A.

6 Case 0:11-cr RSR Document 778 Entered on FLSD Docket 06/09/2013 Page 6 of 6 Michael E. Gilfarb Mark Dispoto 99 Northeast 4th Street Miami, Florida Facsimile: michael.gilfarb@usdoj.gov mark.dispoto@usdoj.gov (Via CM/ECF Electronic Notification) SERVICE LIST Attorneys for the United States of America Gennaro Cariglio, Jr Biscayne Boulevard Suite 900 Miami, FL Fax: 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 Fax: MLRPA@msn.com (Via CM/ECF Electronic Notification) David Jonathon Joffe One East Broward Boulevard Suite 700 Fort Lauderdale, FL Fax: DavidJJoffe@aol.com (Via CM/ECF Electronic Notification) Attorney for Joseph K. Simmons Attorney for Daryl Davis Marc David Seitles Courthouse Center 40 N.W. 3rd Street Penthouse One Miami, FL Fax: mseitles@seitleslaw.com (Via CM/ECF Electronic Notification) Attorney for Hassam Williams 6 SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A.

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9 Case 0:11-cr RSR Document Entered on FLSD Docket 06/09/2013 Page 3 of 5 LOCATION MATRIX FOR 7/10/2010 FROM 3:55 AM TO 5:24 AM FROM AM TO 5:24 AM MOSS BROWN MADISON DAVIS WILLIAMS JOHNSON At Theft Site in Royal Palm Beach No Location Data. But has 18 calls with MOSS from 12:40 AM through 8:13 AM. No Location Data. But has 5 calls with MOSS between 3:55 AM through 5:23 AM. No Location Data from 2:42 AM through 8:46 AM. Available data shows at work prior and home after. Located in Miramar, FL Located in Opa Locka, FL

10 Case 0:11-cr RSR Document Entered on FLSD Docket 06/09/2013 Page 4 of 5 On 7/10/2010 from 3:55 AM until 5:23 AM MOSS has 5 consecutive calls with (754) (MADISON) while utilizing sector (shown below). MOSS also has several calls with (786) 307 has several with (786) (BROWN) while in the vicinity of Royal Palm Beach, FL Country Club Way Royal Palm Beach, FL

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14 Case 0:11-cr RSR Document Entered on FLSD Docket 06/09/2013 Page 3 of 10 LOCATION MATRIX FOR 7/12/2010 FROM 12:49 AM TO 6:41 AM MOSS BROWN MADISON DAVIS WILLIAMS JOHNSON At 5:31 AM in sector covering the vicinity of theft site. No records for that time frame. But MOSS s records show BROWN talking with MOSS at 5:31 AM and 6:17 AM on 7/12/10. No Location Data. But has 2 calls with MOSS at 12:49 AMand AM and 6:11 AM. Miami Gardens, FL at 6:47 AM. No data available prior in the morning. Located in Miramar, FL but has 3 calls with MOSS at 6:03 AM; 6:22 6:22 AM and 6:41 AM. Located in Opa Locka, FL. No location data from 10:24 PM on 7/11/10 through 10:32 AM on 7/12/10.

15 Case 0:11-cr RSR Document Entered on FLSD Docket 06/09/2013 Page 4 of Sherwood Forest Drive Deerfield Beach, FL Stolen Infinity SUV On 7/12/2010 at 5:31 AM MOSS places a 19 minute call to (786) (T. BROWN) while in the sector shown.

16 Case 0:11-cr RSR Document Entered on FLSD Docket 06/09/2013 Page 5 of 10 On 7/12/2010 at 6:03 AM MOSS places a call to (786) (H. WILLIAMS) while in the sector shown.

17 Case 0:11-cr RSR Document Entered on FLSD Docket 06/09/2013 Page 6 of 10 On 7/12/2010 at 6:11 AM MOSS places a call to (754) (B. MADISON) while in the sector shown.

18 Case 0:11-cr RSR Document Entered on FLSD Docket 06/09/2013 Page 7 of 10 Location of (954) (JOHNSON) from 10:24 PM on 7/11/2010 to 12:07 PM on 7/12/2010 (stationary)

19 Case 0:11-cr RSR Document Entered on FLSD Docket 06/09/2013 Page 8 of NW 2 Court Miami Gardens, FL T. BROWN s Residence On 7/12/2010 at 9:09 AM MOSS receives a call from (786) (T. BROWN) while in the sector shown. Vicinity of T. BROWN s Residence.

20 Case 0:11-cr RSR Document Entered on FLSD Docket 06/09/2013 Page 9 of NW 8 Avenue Miami, FL D. DAVIS Residence On 7/12/2010 at 12:34 PM MOSS receives a call from (954) (Unknown Subscriber) while in the sector shown (vicinity of D. DAVIS s residence).

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24 Case 0:11-cr RSR Document Entered on FLSD Docket 06/09/2013 Page 3 of 6 LOCATION MATRIX FOR 7/19/2010 FROM 12:00 PM TO 2:00 PM. MOSS BROWN MADISON DAVIS WILLIAMS JOHNSON Lighthouse h No records Locatedin Located in di Locatedin the Lighthouse h Point, Point, FL at 1:00 PM. See mapping solution. for that time frame. But MOSS records show Miami Gardens area at 10:18 AM and then Aventura and N. Miami area From 12:21 PM through Miramar and Miami Gardens area during this period. FL at 1:03 PM. JOHNSON calls MOSS at 9:22 AM; 9:23 AM and 9:41 BROWN talking with MOSS at 9:08 AM, 2:25 PM, and 6:19 PM. again at 3:04 PM. No data in between these times. Communicat es with BROWN several times this day. 1:51 PM AM. See mapping solution.

25 Case 0:11-cr RSR Document Entered on FLSD Docket 06/09/2013 Page 4 of 6 (786) (MOSS) located in this sector at 1:00 PM on 7/19/2010. / Bank of America 2800 N. Federal Highway NOTE: The only other time MOSS phone connects to this tower/sector is on 7/26/2010 at 12:06:56 PM and 12:09:04 PM. Over 12,500 calls were analyzed over a 9 month period.

26 Case 0:11-cr RSR Document Entered on FLSD Docket 06/09/2013 Page 5 of (954) (JOHNSON) located in this sector at 1:03 PM on 7/19/2010. Bank of America 2800 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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30 Case 0:11-cr RSR Document Entered on FLSD Docket 06/09/2013 Page 3 of 5 LOCATION MATRIX FOR 7/21/2010 FROM 1:00 PM THROUGH 3:00 PM DURING THE CASING OF BRINK S ARMORED TRUCK AT BANK OF AMERICA LOCATED IN LIGHTHOUSE POINT, FL. MOSS DAVIS MADISON WILLIAMS JOHNSON BROWN Located 4 miles south of Bank of America, in Lighthouse Point, FL at 2:28 PM. See mapping solution. Located in Miami Gardens area at 3:29 PM. No location data available from 5:32 AM through 3:13 PM on 7/21/2010. Located in Tamarac, FL area during the 1:00 PM to 3:00 PM time period but has 6 calls with BROWN during this time frame. Located in the Miami Gardens and N. Miami Beach area during this period. Located in Opa Locka, FL at 9:06 AM and Hollywood, FL at 3:36 PM. No location data for the period analyzed. No records for this time frame. Has 6 calls with MADISON.

31 Case 0:11-cr RSR Document Entered on FLSD Docket 06/09/2013 Page 4 of 5 Bank of America 2800 N. Federal Highway (786) (MOSS) located in this sector at 2:28 PM on 7/21/2010. NOTE: MOSS phone connects to this particular tower/sector only on this occasion, out of over 12,500 calls analyzed over a 9 month period.

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35 Case 0:11-cr RSR Document Entered on FLSD Docket 06/09/2013 Page 3 of 4 LOCATION MATRIX FOR 7/26/2010 FROM 12:00 PM TO 2:00 PM MOSS DAVIS MADISON WILLIAMS JOHNSON BROWN Located in Lighthouse Point near Bank of America at 12:06 PM and 12:09 PM. Located near barber shop from 5:10 PM to 6:29 PM and then again from 9:25 PM to 10:50 PM. Makes 20 calls with BROWN on this date. See mapping solutions. Located near residence at 9:16 AM. Connects to tower in Lighthouse Point at 12:23 PM. Connects to tower back near residence at 3:06 PM. Has several calls with BROWN and very high volume of calls from MADISON. See mapping solutions. Located in area of Bank of America in Lighthouse Point at 1:56 PM. Thereafter travels south south to area near Daryl DAVIS residence. Has several calls with BROWN and DAVIS. See mapping solutions. his date. Located near D. DAVIS residence at 8:47 Am and 9:23 AM. WILLIAMS receives 2 calls from MADISON s phone at 1:58 PM. No location data after 9:23 AM until 9:24 PM. See mapping solutions. Analysis reveals no data from 8:44 AM through 6:07 PM. Phone was located in Opa Locka before and after this time period. Makes several calls with WILLIAMS girlfriend. No Location Data.

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