USA v. LESTER BURRELL JACKSON III

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA
v.
LESTER BURRELL JACKSON III
Defendant.
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2:24-cr-00022
MEMORANDUM OPINION AND ORDER RESOLVING DEFENDANT’S PENDING
MOTIONS, SCHEDULING AN EVIDENTIARY HEARING, AND SETTING
DEADLINES
Defendant 	Lester 	Burrell 	Jackson 	III 	(“Defendant”) 	was 	charged 	in 	a 	six-count
Superseding Indictment on March 13, 2024. (ECF No. 43), followed up with a Second Superseding
Indictment (ECF No. 138), that again contained six counts, but which includes additional
allegations. He has filed numerous pretrial motions related to the proceedings in his case. (ECF
Nos. 115, 116, 117, 118, 119, 121, 122, 123, 124, 125, 133, 152, 153). While several of these
Motions predate the Second Superseding Indictment (“SSI”), the Defendant has reasserted them
in full against the SSI. (ECF No. 154). These Motions have been briefed and are now ripe for
resolution and/or the setting of further proceedings. This Memorandum Order will resolve some
of these Motions, hold disposition of some others in abeyance pending further proceedings, and
schedule additional hearings as is necessary.
BACKGROUND
Defendant is accused of selling illegal narcotics to an undercover city of Pittsburgh police
office on three separate occasions during a “sting” operation. During a final scheduled sale,
Defendant was arrested, and a search of his satchel bag found a pistol, which was illegal for him
to possess in light of his multiple prior felony convictions. In the SSI, Defendant was charged with
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three counts of distributing methamphetamine and fentanyl, two counts of illegally possessing a
firearm, and one count of possessing fentanyl with the intent to distribute.
The sting operation began in 2023. In October of that year an undercover police officer
(“UO”) began contacting Defendant through text messages, phone conversations, and FaceTime
video calls. Defendant at this time was using a phone associated with the number (412) 636-7017.
He would later continue these communications using a different phone number: (412) 545-4031.
The officer recognized Defendant on FaceTime by comparing the video feed to his arrest
photograph on Allegheny County’s Quick Arrest website.
The communications between Defendant and the UO related to the sale of illegal narcotics.
Defendant allegedly agreed to meet UO at the Robinson Mall in the suburbs of western Pittsburgh
to sell narcotics to the UO. On November 14, 2023, the UO arrived at the Robinson Town Center
Mall (“Mall”) and allegedly purchased a brick of heroin/fentanyl and a small amount of
methamphetamine from the Defendant for two hundred dollars. The UO would allegedly purchase
increasing amounts of narcotics from Defendant at the Mall again in December of 2023 and in
January of 2024.
These facts alleged were submitted in an affidavit sworn out by Johnny Erevia, a Special
Agent with the federal Bureau of Alcohol, Tobacco, Firearms and Explosives in a criminal
complaint. (ECF No. 2). On January 26, 2024, a United States Magistrate Judge issued an arrest
warrant for Defendant based on that affidavit. (ECF No 8). The Magistrate Judge also approved a
search warrant (No. 24-120) to search Defendant’s person when he was arrested for any
instrumentalities or evidence of the crimes he was accused of, and specifically for any electronics
in his immediate control. (ECF No. 125-2) (“First” Search Warrant).
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On January 27, 2024, Defendant drove to meet the UO, allegedly under the pretense of the
UO purchasing more fentanyl. When he arrived at the agreed upon location, law enforcement
officers moved in to arrest Defendant. Defendant attempted to flee and discarded fentanyl he had
in his possession. Law enforcement subdued Defendant, securing the cell phone he had in his hand,
and found a Smith & Wesson .40 caliber pistol in his satchel.
A second search warrant (No. 24-131) (“Second” Search Warrant) was sought and then
approved after Defendant’s arrest. (ECF No. 125-4). This Second warrant approved a search of the
car Defendant drove to meet with the UO the day of his arrest. Agent Erevia once again swore out
the supporting affidavit, stating that a search of Defendant’s vehicle was necessary and permitted
because in his experience “it is common for drug dealers to conceal contraband, firearms, and
proceeds of drug sales in secure locations within their residences, vehicles, and/or businesses for
ready access.” (ECF No. 125-4 at 4). This Second search warrant approved a search for
instrumentalities of crime, including controlled substances, cellular telephones, photographs,
videos, other records, and United States currency within Defendant’s car. The Second warrant also
stated that any found digital device could be operated and searched to discover certain pieces of
information.
When Defendant’s car was searched pursuant to the Second warrant, another cell phone
was found. The phone in Defendant’s hand when he was originally arrested was associated with
the phone number (412) 545-4031. The phone found in the car was associated with the phone
number (412) 636-7017.
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DISCUSSION
The Defendant has filed a variety of Motions. The Court will address them in turn, with
some Motions being addressed simultaneously due to the Court deciding them along similar
grounds.
I. 	Defendant’s Motion To Dismiss The Second Superseding Indictment On Speedy
Trial Grounds (ECF No. 152) Is DENIED.
Defendant has filed a Motion to Dismiss the Second Superseding Indictment, (ECF No. 152),
arguing that prosecution of the Defendant on all but one charge in both the Superseding Indictment
and SSI violate the Speedy Trial Act and the Due Process Clause of the Fifth Amendment. The
criminal complaint filed on January 26, 2024, charged Defendant with distribution of more than
50 grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii). (ECF
No. 17). Defendant was subsequently arrested the next day, January 27, 2024, pursuant to a federal
warrant. On February 6, 2024, eight days after Defendant’s arrest, Defendant was indicted by a
grand jury on four counts, in which Count 3 was for the distribution of 50 grams or more of
methamphetamine named in the criminal complaint, which the indictment alleged to have occurred
on or about January 2, 2024. Counts 1 and 2 were for distribution of methamphetamine on two
different dates and Count 4 was for possession of a firearm and ammunition by a convicted felon
in violation of 18 U.S.C. §922(g). (ECF No. 26).
On March 13, 2024, a grand jury returned the six-count Superseding Indictment which added
Count 5, possession with intent to distribute a quantity of fentanyl and Count 6, carrying a firearm
during and in relation to a drug trafficking crime, both on or about January 27, 2024. (ECF No. 43).
Finally, on September 16, 2025, a grand jury returned the six-count SSI, which added fentanyl as
a substance Defendant is charged with distributing under Counts 1, 2, and 3. (ECF No. 138). The
SSI also includes a “Special Finding” section that alleges Defendant was previously convicted of
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a serious violent felony and served a term of imprisonment of more than twelve months, which the
Government states, along with the Notice filed at ECF No. 141, put Defendant on notice that
enhanced penalties in 21 U.S.C. § 841 apply.
The Speedy Trial Act requires that, “[a]ny information or indictment charging an individual
with the commission of an offense shall be filed within thirty days from the date on which such
individual was arrested or served with a summons in connection with such charges.” 18 U.S.C.
§ 3161(b). Defendant argues that, because the Superseding Indictment was filed forty-six days
after his arrest and the SSI was filed nearly 600 days after his arrest, both indictments violate the
thirty-day time limit imposed by § 3161(b). In support of this argument, Defendant cites two cases
from the Second Circuit, United States v. Gonzalez, 748 F.2d 74 (2d Cir. 1984), and United States
v. Grady, 544 F.2d 598 (2d Cir. 1976). The Government responds that it has not violated the
Speedy Trial Act because Defendant was charged in the initial indictment with the only charge in
the criminal complaint, distributing of 50 or more grams of methamphetamine, and that the charge
has remained throughout both the Superseding Indictment and SSI.
In Gonzalez, the defendant had been indicted within the required time for allegedly defrauding
one victim, but the Government had not indicted the defendant for defrauding a second victim until
six months later. 748 F.2d at 79. The Gonzalez Court dismissed the fraud charge relating to the
second victim because the defendant was not indicted until after the thirty-day period following
the defendant’s arrest had elapsed. Id. Notably, however, the Gonzalez Court decision rested on
the fact that the defendant had not been indicted until, “more than six months after it arrested him
for such conduct.” Id. (emphasis added). Here, unlike in Gonzalez, Defendant was arrested for the
conduct alleged in the criminal complaint, which has remained in the indictment since its initial
inclusion within the statutorily required time.
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The Third Circuit has adopted this distinction. There is no violation of the Speedy Trial Act
when a superseding indictment charges conduct that was not previously charged in a complaint;
the Speedy Trial Act “requires the dismissal of only those charges that were made in the original
complaint that triggered the thirty-day time period.” United States v. Cox, 553 F. App'x 123, 129
(3d Cir. 2014) (quoting United States v. Oliver, 238 F.3d 471, 473 (3d Cir.2001)); see also United
States v. Komolafe, 246 F. App'x 806, 809 (3d Cir. 2007) (“[S]uperseding indictments filed longer
than 30 days after an arrest which add charges to those contained in the original indictment do not
violate the Speedy Trial Act.”).
Defendant also cites Grady for the argument that the Superseding Indictment and SSI
substantially broaden or amend the indictment and should therefore be dismissed for being filed
outside of the Speedy Trial Act window. This Court has already rejected Defendant’s reading of
Grady. Grady “addressed the interplay of an indictment and the statute of limitations,” and is
therefore inapplicable where the statute of limitations is not implicated. United States v. Watson,
No. CR 19-203, 2025 WL 2173346, at *3 (W.D. Pa. July 31, 2025) (citing Grady, 544 F.2d at
601).
Finally, Defendant also argues that the Superseding Indictment and SSI require dismissal on
Fifth Amendment due process grounds and accuses the government of using pre-indictment delay
to gain a tactical advantage. (ECF No. 152, at 3–4). Defendant “can make out a claim under the
Due Process Clause only if he can show both (1) that the delay between the crime and the federal
indictment actually prejudiced his defense; and (2) that the government deliberately delayed
bringing the indictment in order to obtain an improper tactical advantage or to harass him.” United
States v. Beckett, 208 F.3d 140, 150–51 (3d Cir. 2000). Defendant has not alleged how any pre-
indictment delay has prejudiced his defense or any facts to indicate that the Government
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deliberately delayed bringing the SSI to gain an improper advantage or to harass him. Therefore,
Defendant’s Due Process claim cannot succeed.
Defendant’s Motion to Dismiss the Second Superseding Indictment (ECF No. 152) is therefore
DENIED.
II. 	Defendant’s Motion For Advance Written Notice of “Other Bad Acts” Evidence
(ECF No. 115), Motion For Advance Written Notice of Intent To Use Certain
Impeachment Evidence (ECF No. 116), Motion For Release of Brady Materials
(ECF No. 117), Motion for Discovery (ECF No. 118), Motion for Production of
Jencks Material (ECF No. 119) Will Be GRANTED On the Terms Stated.
Defendant has filed a number of Motions that relate to the presentation and admission of
evidence at trial and therefore are generally resolved through a pretrial order. None of these listed
Motions reveal any reason why the Court should conclusively resolve these Motions at this stage
of the litigation instead of following that standard practice and addressing them in final detail
closer to trial and as part of the pretrial order. And Defendant has informed the Court that one of
these Motions, (ECF No. 118), has already been partially resolved. (ECF No. 166). The Court
would advise the parties that such pretrial order will set final deadlines for the disclosure of any
anticipated “bad acts” and impeachment evidence consistent with Federal Rules of Evidence 404
and 609, and will set a date reasonably in advance of trial for disclosure of Jencks Act material.
The Court has confirmed to counsel during prior status conferences in this case that the
Government’s disclosure obligations under the Brady/Giglio doctrines exist now and are
continuing according to the terms of such doctrines, and the Government has acknowledged its
resulting obligations on the record and that as of the time of those acknowledgements that it had
disclosed all Brady/Giglio material to the defense.
The Court will finally address such trial-related Motions as part and parcel of its Pretrial Order
and in the usual course by the setting of disclosure timelines in the Pretrial Order. Each of the
Motions at ECF Nos. 115, 116, 117, and 119 are therefore each GRANTED in substance only at
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this point and subject to finalization of relevant timelines for filing and disclosures via the Court’s
Pretrial Order based on the circumstances then presenting. The Court REAFFIRMS that the
disclosure obligations pursuant to the Brady/Giglio doctrines exist now and are continuing
according to their terms. At to the Motion at ECF No. 118, the Motion is GRANTED only as
follows and to the extent that such has yet to occur: that photographs of the currency referenced at
Paragraph 7 of said Motion be made available for inspection and copying by defense counsel
within 21 days of the date of this Order; that copies of the lab reports referenced in Paragraph 9 of
said be Motion be made available for inspection and copying by defense counsel on the same
terms; as to the request for defense counsel access to Government expert reports referenced at
Paragraph 14 of said Motion, counsel shall promptly confer and submit a proposed Order as to an
appropriate timeline for the disclosure of all expert reports by each party.
III. 	Defendant’s 	Motion 	for 	Discovery 	in 	Aid 	of 	Investigation 	into 	Selective
Prosecution and/or Selective Enforcement (ECF No. 122).
Defendant’s Motion for Discovery for Discovery in Aid of Investigation into Selective
Prosecution and/or Selective Enforcement will be DENIED. Defendant has not proffered sufficient
evidence to warrant the requested discovery. And the evidence Defendant alleges he would prove
at an evidentiary hearing would still fail to meet this bar.
Defendant first argues he is entitled to additional discovery in aid of a selective prosecution
claim. A claim of selective prosecution is “an independent assertion that the prosecutor has brought
the charge for reasons forbidden by the Constitution.” United States v. Armstrong, 517 U.S. 456,
463 (1996). This claim is based on equal protection principles. Id. at 464–65. A decision to
prosecute “deliberately based upon an unjustifiable standard” violates the Equal Protection Clause
and is thereby forbidden by the Constitution. Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).
An unjustifiable standard includes prosecutions based on race, religion, or “the exercise of
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protected statutory and constitutional rights.” Wayte v. United States, 470 U.S. 598, 608 (1985);
see, e.g., Frederick Douglass Found., Inc. v. District of Columbia, 82 F.4th 1122, 1142 (D.C. Cir.
2023) (government engaged in unlawful selective prosecution for exercise of First Amendment
rights when it arrested one group of protestors but not a similar group).
The standard for proving a selective prosecution claim “is particularly demanding,
requiring a criminal defendant to introduce ‘clear evidence’ displacing the presumption that a
prosecutor has acted lawfully.” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471,
489 (1999). This “clear evidence” must demonstrate that the prosecution “had a discriminatory
effect and that it was motivated by a discriminatory purpose.” Armstrong, 517 U.S. at 465. Such a
demanding standard is necessary to avoid impairing the “performance of a core executive
constitutional function.” Armstrong, 517 U.S. at 465. After all, “[e]xamining the basis of a
prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the
prosecutor’s motives and decisionmaking to outside inquiry, and may undermine prosecutorial
effectiveness by revealing the Government’s enforcement policy.” Wayte, 470 U.S. at 607.
“The justifications for a rigorous standard for the elements of a selective-prosecution claim
[] require a correspondingly rigorous standard for discovery in aid of such a claim.” Armstrong,
517 U.S. at 468. This is because responding to a selective prosecution discovery request distracts
the Government from its prosecutorial functions and forces it to divert resources which otherwise
may be used to support the prosecution. See id. Notably, these are the same issues caused by
responding to the merits of a selective prosecution claim itself, albeit to a lesser degree. Because
the same issues are implicated by selective prosecution discovery requests, the same standard
applies. Thus, discovery requests for selective prosecution claims “require some evidence tending
to show the existence of the essential elements” of discriminatory effect and discriminatory intent.
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Id. (emphasis added).
Demonstrating “some evidence” that a prosecution had a discriminatory effect requires “a
credible showing of different treatment of similarly situated persons.” Id. at 470. For example, in
United States v. Jones, the Sixth Circuit Court of Appeals reversed a lower court order denying
selective prosecution discovery. 159 F.3d 969 (6th Cir. 1998). Jones involved a selective
prosecution claim accusing Tennessee’s Murfreesboro Police Department of prosecuting the
Defendant, Climmie Jones Jr., based on his race. Jones was an African American man arrested on
cocaine distribution charges. Id. at 973. After Jones was arrested, his case was referred for federal
prosecution. Id. at 975. Jones claimed this referral was racially motivated. As evidence of this,
Jones pointed out that the Murfreesboro Police had arrested eight white defendants for cocaine
distribution, but had only referred Jones and his co-defendant for federal prosecution. Id. at 976.
The Sixth Circuit found that this disparate approach was “some evidence” of a discriminatory
effect, permitting discovery on such matters. Id. at 978.
Showing “some evidence” of discriminatory intent is difficult. This is because it requires
a demonstration that it was likely the prosecutor “selected or reaffirmed a particular course of
action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable
group.” Wayte, 470 U.S. at 610 (quoting Pers. Adm'r of Massachusetts v. Feeney, 442 U.S. 256,
279 (1979)). This kind of direct evidence is hard to come by prior to commencing discovery, and
indeed “neither the Supreme Court nor [the Third Circuit] has ever found sufficient evidence to
permit discovery of a prosecutor’s decision-making policies and practices.” United States v.
Washington, 869 F.3d 193, 215 (3d Cir. 2017).1
1 The Sixth Circuit in Jones did find there was evidence of discriminatory intent, based on some fairly outrageous
facts. The Murfreesboro Police Officers who arrested Jones and his co-defendant made t-shirts celebrating that arrest.
159 F.3d at 975. Notably the t-shirts the officers made featured Jones and his wife, who is also African American but
not a party to the case, but omitted Jones’s co-defendant, who was equally accused of wrongdoing but who was white.
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In this case, Defendant has not demonstrated “some evidence” of discriminatory effect or
of discriminatory intent. Defendant has not alleged there is any party who is sufficiently similarly
situated to himself who was treated differently for legally impermissible reasons, let alone
provided “some evidence” of it. This is insufficient to show a discriminatory effect. And Defendant
has no evidence other than the speculation contained in his Motion that his prosecution was done
“because of” his prior invocations of his constitutional right. Defendant does seek to introduce
additional evidence through a requested evidentiary hearing that he alleges would establish
discriminatory intent by proving a pattern of police harassment. But the problem with that evidence
is that even if it proved what the Defendant alleges it will, the Defendant’s numerous prior run-ins
with the law provide a “legitimate reason” for the prosecution focusing on the Defendant. United
States v. Rundo, 108 F.4th 792, 807–08 (9th Cir. 2024). And where such a legitimate reason exists,
the evidence would need to demonstrate that harassment was the purpose of the Defendant’s
prosecution, not just a byproduct of otherwise legitimate practices. See id. The Defendant has not
crossed over that threshold here.
Defendant argues in the alternative for additional discovery in support of a selective
enforcement claim.2 After Armstrong cemented the requirements for selected prosecution
Id. at 977. If that was not enough, one of the officers mailed Jones a post card while the officer was on vacation, one
featuring an African American woman with bananas on her head. Id. When asked about that card on the stand, the
officer testified the postcard meant “[n-word], you’re a monkey with bananas.” Id. Suffice it to say that the record
here includes nothing along those lines, nor any suggestion that such exists or would likely be discerned with
authorized discovery.
2 After the SSI was filed, the Defendant confirmed that the new allegations made little difference to the Court’s
consideration of his then pending Motions and reasserted them in full. (ECF No. 154). The only difference in the SSI
the Defendant did highlight was the possibility of an enhanced sentence due to the new allegations. Defendant went
on to argue that his Motion for Selective Enforcement could also be seen as Motion to Dismiss for Vindictive
Prosecution in light of these new allegations, arguing that the inclusion of possible sentence-enhancing allegations
after Defendant has made selective prosecution/enforcement arguments grounded in the Equal Protection Clause are
“facts sufficient to give rise to a presumption of vindictiveness.” United States v. Paramo, 998 F.2d 1212, 1220 (3d
Cir. 1993). But cases involving sentence-enhancing allegations made subsequent to the assertion of a Constitutional
right generally also require additional “suspect conditions that lead us to independently question whether the charging
decision was made in good faith.” United States v. Korey, 614 F. Supp. 2d 573, 584 (W.D. Pa. 2009). None are
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discovery, several courts began to question if its high bar should also apply to claims for selective
enforcement. The Third Circuit joined these courts in United States v. Washington. There the Court
considered if the “demanding gatekeeper” introduced in Armstrong should also apply to claims of
selective enforcement. 869 F.3d at 215. The Court, relying heavily on the Seventh Circuit’s
opinion in United States v. Davis, decided the same policy concerns that justified creating a
rigorous standard in selective prosecution cases did not apply to selective enforcement cases. Id.
at 218.
It is first necessary to distinguish between selective prosecution and selective enforcement
cases. The former refers to allegedly unconstitutional actions taken by the United States Attorney
in bringing or amplifying charges against a criminal defendant. See United States v. Davis, 793
F.3d 712, 718 (7th Cir. 2015) (en banc). The latter involves allegedly unconstitutional actions
taken by law enforcement officers during investigations and arrests. See United States v. Sellers,
906 F.3d 848, 852–53 (9th Cir. 2018). There is a crucial difference in the identity of the allegedly
unconstitutional actor: prosecutor vs. officer.
That difference stems from the solicitude given to prosecutorial decision making. Federal
prosecutors are presumed to exhibit “honest and constitutional behavior,” and the Judicial Branch
is not properly equipped to second guess “the Executive branch’s deliberative processes, which
are covered by strong privileges.” Davis, 793 F.3d at 720. This is why prosecutors “are ordinarily
shielded by absolute immunity for their prosecutorial acts.” Washington, 869 F.3d at 219. The
strong layers of protection for prosecutorial decision making are why seeking information through
selective prosecution discovery must first meet a high bar.
advanced to exist here, and the Supreme Court has held that the Government may amplify charges during the course
of a prosecution, even after a defendant expresses a desire to proceed to trial or asserts one or more substantive or
procedural defenses to the charges. See Bordenkircher, 434 U.S. at 364
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The same cannot be said for other law enforcement officers. These officers “are not
protected by a powerful privilege or covered by a presumption of constitutional behavior.” Davis,
793 F.3d at 720. In an ordinary criminal case, criminal defendants “are allowed discovery for
various aspects of law enforcement operations.” Sellers, 906 F.3d at 853. Absent the special
considerations unique to the prosecutor position, there is no need to make gaining access to such
discovery especially onerous.
However, “motions for discovery on selective enforcement claims must still be guided by
the spirit of Armstrong.” Washington, 869 F.3d at 220. Thus, the general framework still applies,
just with some tweaks. The biggest tweak is that reaching selective enforcement discovery no
longer requires some evidence of discriminatory intent. Instead, selective enforcement discovery
can commence upon a proffer that shows some evidence of discriminatory effect alone. This
proffer must “contain reliable statistical evidence or its equivalent . . . . [And] be strong enough to
support a reasonable inference of discriminatory intent and non-enforcement.” Id. at 221.
The Government points out that Defendant has not proffered any statistical evidence to
trigger such discovery, and the Defendant responds that statistical evidence is not necessary so
long as he can provide its persuasive equivalent. Defendant is correct, but his proffered evidence
falls well short of the necessary equivalency. That is because he has not identified any similarly
situated person who was not subject to the law enforcement actions Defendant complains about
here. And the evidence Defendant claims he would prove at his requested evidentiary hearing
would only focus on himself and his family, not any persons who are similarly situated who could
have been targeted by law enforcement but were not. Cf. Armstrong, 517 U.S. at 470 (concluding
that evidence submitted must show that individuals exist who “could have been prosecuted for the
offenses for which [Defendants] were charged, but were not” to permit discovery on a selective
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prosecution claim). Defendant is not entitled to discovery without making a showing that there
would be evidence that law enforcement unlawfully and selectively “acted upon, or did not act
upon, persons similarly situated to the defendant.” Washington, 869 F.3d at 221 n.124.
Defendant’s Motion for Discovery for Discovery in Aid of Investigation into Selective
Prosecution and/or Selective Enforcement (ECF No. 122) is DENIED. Defendant has not proffered
evidence of discriminatory effect or discriminator intent sufficient to justify discovery in aid of a
selective prosecution claim. Nor has he identified any similarly situated person who was not
subject to the same law enforcement actions as the Defendant so as to justify discovery in aid of a
selective enforcement claim.
IV. 	Defendant’s Motion to Suppress Firearm Evidence (ECF No. 123).
Count 4 of both the Superseding Indictment and the SSI charges Defendant with unlawfully
possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g). The firearm in
question was a Smith & Wesson pistol found in Defendant’s satchel the day he was arrested. The
Defendant argues the search of this satchel was unconstitutional and thus evidence of the pistol
must be suppressed. The Government disagrees. The Court will order an evidentiary hearing be
held on this Motion. Here’s why.
The First Warrant that accompanied Defendant’s arrest did not specifically authorize a
search of his satchel for a firearm. It authorized a search of Defendant’s “person” that included
any “electronics in his immediate control.” (ECF No. 125-2 at 3). The items to be seized pursuant
to this search did include any “evidence, fruits, or instrumentalities of” crime, but was more
specifically focused on cell phones and other digital devices. (ECF No. 125-2 at 4). The warrant
did not make any mention of any satchel, bag, or luggage.
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When constructing the Fourth Amendment, the Framers specifically prohibited the use of
general warrants that allowed “a general, exploratory rummaging in a person’s belongings.”
Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). To that end, search warrants must be
sufficiently particularized to be “as limited as possible” in their resulting search. Id. Sufficient
particularization includes a written description of the areas to be searched and the kind of items to
be seized. Groh v. Ramirez, 540 U.S. 551, 557 (2004) (quoting U.S. Const. amend. IV). Searches
and seizures conducted outside of the written description contained in a warrant must be justified
by something other than that warrant. Because neither search warrant here identified Defendant’s
satchel as a place to be searched, the Government must provide a more specific justification for
that search.
The Government claims it has one: law enforcement can constitutionally search an
individual incident to a lawful arrest in order to secure weapons and prevent the concealment or
destruction of evidence. United States v. Robinson, 414 U.S. 218, 234–35 (1973). This type of
search is permissible “to accommodate the eminently important goal of ensuring police officer
safety.” United States v. Matthews, 532 F. App’x 211, 224 (3d Cir. 2013). Officer safety being the
primary concern, the limits of such a search can only extend so far as necessary to ensure that
safety. See Chimel v. California, 395 U.S. 752, 762 (1969).
This is where the factual dispute between the parties comes in. Defendant argues that
ensuring officer safety cannot be used as a justification to search his satchel, because it was already
away from his person and thus posed no threat. The Government has a different account.
According to its briefing, the satchel was still on the Defendant’s body and he could have accessed
its contents, placing officers at risk had they not secured the pistol within. Because the justification
of the search of the satchel and subsequent seizure of the firearm heavily depends on the facts
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surrounding Defendant’s proximity to the searched satchel and well may implicate a permissible
basis for the search outside of a warrant, the Court ORDERS that an evidentiary hearing on this
matter be held. The final disposition of this Motion will be held in ABEYANCE pending the
conduct of that hearing and the completion of the record in regard to this Motion.
V. 	Defendant’s Motion to Suppress FaceTime Recordings, Text Messages, and
Evidence of Cellular Telephone Calls (ECF No. 124).
When Defendant communicated with the UO, he did so via text messages, phone calls, and
FaceTime video calls apparently by using an Apple iPhone. The Government has records of all
these communications across all three media. The UO took visual screenshots of the text messages
Defendant sent to him, and also took a visual screenshot of the call log that lists the details (but
not the substance of any conversation) of the nine phone calls which occurred between UO and
the Defendant. Finally, the Government also has video/audio recordings of the video calls. These
recordings were taken by another law enforcement officer who was in the room with the UO
unbeknownst to the Defendant and who used a separate device to “film” the video calls, by the
second officer using the camera function on his cellphone to make a video/audio recording of what
was appearing contemporaneously on the UO’s cellphone Defendant argues that all of these
electronic records should be suppressed.
Defendant’s argument for suppression is based on his having a reasonable expectation of
privacy in these communications. Fourth Amendment protections come in several flavors. The
first follows traditional notions of trespass law and is triggered whenever the Government “obtains
information by physically intruding on a constitutionally protected area.” United States v. Jones,
565 U.S. 400, 405 (2012). But the second is broader, protecting against Government intrusion in
any area where the defendant had “a legitimate expectation of privacy in the invaded place.” United
States v. Montalvo-Flores, 81 F.4th 339, 342 (3d Cir. 2023). If such an expectation of privacy
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exists, then Government intrusion must be justified by the existence of a valid warrant, or some
other lawful exception to the warrant requirement.
Defendant argues he has a legitimate expectation of privacy in the content of his involved
digital communications such that the recording of them by their recipient, when said recipient is a
law enforcement officer, required a search warrant and, no such warrant existing, they must be
suppressed. Defendant’s alleged expectation of privacy comes from the type of phone he used: an
Apple iPhone. Defendant proffers the Apple company’s privacy policy which states that
communications made via text messages and FaceTime video calls between iPhones are encrypted
in such a way that ensures the confidentiality of these messages from interception. Defendant
argues it is that encryption technology which gave him an expectation of privacy in his digital
communications made with an iPhone, and that to “invade” this privacy by a receiving police
officer recording the visual/audio content showing upon his cellphone, the Government would
need a valid search warrant.
In United States v. White, the Supreme Court considered a similar situation. 401 U.S. 745
(1971). There, a government informant conversed with the defendant at his home on four separate
occasions while wearing a wire Id. at 746–47. The defendant’s statements in these conservations
were electronically conveyed to an agent outside the home using the wire. Id. at 747. A fractured
Supreme Court held that this did not violate the Fourth Amendment. The plurality based its
conclusion on an understanding that there was no legitimate expectation of privacy in the words
of the defendant as spoken to another. Id. at 751. The reasoning was: a person is not justified in
expecting a conversational partner not to communicate the contents of a conversation to a third
party or otherwise record what was said to them. Id. If a person is not justified in having that
expectation of privacy, such an expectation cannot exist when an electronic means serves to
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expedite the same process that would have occurred had the informant immediately contacted the
outside agent after the conversations or had immediately written them down. Id. at 751–52.3
For Defendant to succeed he must prove that his expectation of privacy in the encryption
technology of Apple phones was so strong that it extended even further than the expectation of
privacy one has in a conversation conducted through any other medium as articulated by the White
plurality. Defendant claims he has an expert witness who can do just that.
The Court has its doubts given the rather common-sense principles applied by the White
plurality, and the realities of everyday life that something said to another ceases to be a secret,4 at
least when there is no use of technology to intrude into the communications device(s) to actually
intercept content and which would be subject to federal or state wiretap laws. But nonetheless, the
issue is significant enough that the Court will give the Defendant the opportunity to make and
support his arguments in such regards, and ORDERS than an evidentiary hearing will be held on
the Defendant’s motion that the Defendant had a reasonable expectation of privacy in the text
messages, phone calls, and video FaceTime calls involved in this case, and that even the receipt
and recording of the content at issue here unconstitutionally violated his Fourth Amendment rights
in such regards. The Court anticipates that such hearing will be held conterminous with the other
hearings directed by this Order. The Court will therefore resolve this Motion only after the conduct
of such hearing and completion of the record in such regards. Therefore, the disposition of the
Motion at ECF No. 124 is held in ABEYANCE pending further proceedings.
3 Justice Black provided the decisive vote for the judgment in that case, although he only concurred in the judgment.
Justice Black based his conclusion on his belief that Fourth Amendment jurisprudence had erred when it moved away
from common-law trespass, and thus electronic recordings by the Government could never implicate the Fourth
Amendment, reasonable expectation of privacy or not. White, 401 U.S. at 754.
4 As Benjamin Franklin once wrote, “[t]hree may keep a secret, if two of them are dead.” Benjamin Franklin, Poor
Richard’s Almanack 8 (Dean Walley ed., Hallmark 1967) (1732).
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VI. 	Motion to Suppress Evidence of Phones Associated with (412) 545-4031 and (412)
636-7017, the Fruits of the Search of Said Phones, and for a Franks Hearing (ECF
No. 125).
Two cell phones used by Defendant were seized and then searched. The first was associated
with the phone number (412) 545-4031 (“4031 phone”) and was seized from Defendant when he
was arrested. The First Warrant issued in this case authorized a search for “[a]ny mobile cellular
phones found the person of” Defendant. (ECF No. 125-2 at 4). The second cell phone was
associated with the phone number (412) 636-7017 (“7017” phone) and was seized from the car
Defendant drove to meet with the UO the day he was arrested. That phone was seized pursuant to
the Second Warrant, which authorized a search for “[c]ellular telephones” within the vehicle. (ECF
No. 125-4 at 12). Defendant argues both warrants used to seize these phones are invalid, and thus
evidence of the phones and of any information contained inside of them should be suppressed.
Beginning with the First Warrant, which was used to seize the 4031 phone, Defendant
makes three arguments in support of suppression. First, Defendant argues that the warrant was
invalid because it was a “general warrant” which lacked particularity because it authorized a search
of the entire phone’s contents. Second, Defendant continues, there was not even probable cause to
search any of the phone’s contents in the first place, because the statements in the underlying
affidavit were conclusory and without any factual support. Finally, Defendant argues that to the
extent there was probable cause to search the 4031 phone, the investigators who searched it went
beyond the scope of the warrant.
The Fourth Amendment abhors a general warrant, and a general warrant is one that “vests
the ‘executing officers with unbridled discretion to conduct an exploratory rummaging through
[the defendant’s] papers in search of criminal evidence.’” United States v. Yusuf, 461 F.3d 374,
393 n.19 (3d Cir. 2006) (quoting United States v. Ninety-Two Thousand Four Hundred Twenty-
Two Dollars & Fifty-Seven Cents, 307 F.3d 137, 149 (3d Cir. 2002)). Avoiding such vesting
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requires particularization, specifically the warrant must include a written description of the areas
to be searched and the kind of items to be seized. Groh, 540 U.S. at 557. The particularity
requirement also applies to digital devices, and a warrant cannot “grant[] the Government access
to, inter alia, every email, every text message, every digital file, all call logs, all location data, and
all internet browsing history.” United States v. Williams¸ 813 F. Supp. 3d 503, 526 (E.D. Pa. 2025).
But the First Warrant in this case was sufficiently particularized. It included a discrete list
of 23 different categories of information that could be seized from the contents of Defendant’s
phone. (ECF No. 125-2 at 4–5). And the warrant is clear that the only pieces of information that
fit within these categories which could be seized were those that related to the crimes Defendant
was accused of at that time. (ECF No. 125-2 at 4). This is far from an unparticularized general
warrant that “includes no limiting principle.” Williams, 813 F. Supp. 3d at 526.
Particularization is irrelevant if the warrant is not supported by a finding of probable cause.
The Fourth Amendment ensures “no Warrants shall issue, but upon probable cause.” U.S. Const.
amend. IV. The probable cause requirement exists “to affirm and preserve a cherished rule of the
common law, designed to prevent the issue of groundless warrants.” McGrain v. Daugherty, 273
U.S. 135, 156 (1927). Probable cause exists where “there is a fair probability that contraband or
evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).
“Because probable cause deals with probabilities and depends on the totality of the circumstances,
it is a fluid concept that is not readily, or even usefully, reduced to a neat set of legal rules.” District
of Columbia v. Wesby, 583 U.S. 48, 57 (2018) (internal quotations and citations omitted).
The search and seizure of the 4301 phone is supported by probable cause. The search and
seizure was based on a very compelling set of alleged facts stated in support of the issuance of the
warrant: the Defendant had used that phone to sell narcotics to the UO on multiple prior occasions.
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The Defendant seems to argue there is an insufficient connection between these facts and a search
of the 4301 phone outside of Agent Erevia’s alleged training and experience. While it is true that
“when it comes to establishing probable cause to sort through another’s privacy, something more
in the way of case-specific evidence must nudge training and experience across the finish line,”
such evidence exits here. See United States v. LaCosta-Franco, 828 F. Supp. 3d 543, 557–58 (E.D.
Pa. 2026). That evidence is: the use of a cellular phone to schedule and execute multiple sales of
narcotics, these sales involving an amount of narcotics sufficient to suggest a larger enterprise that
goes beyond what was already known by the UO, and the use of multiple cell phone numbers to
communicate with the UO that suggests Defendant used cellular devices with enough frequency
to develop a strategy to avoid detection.
Defendant’s final argument regarding the suppression of the fruits of the First Warrant goes
to its execution. Defendant argues the investigators that searched the phone “exceeded the
authority of the warrant by retrieving from the telephone information and data that did not
constitute evidence of the offense(s) being investigated.” (ECF No. 125 at 11). The Defendant
does not identify which pieces of evidence he believes exceeded the warrant’s scope. In its
responsive briefing, the Government has provided an extraction report listing all of the information
taken from the 4031 phone. (ECF No. 131-3).
“If the scope of the search exceeds that permitted by the terms of a validly issued warrant
. . . the subsequent seizure is unconstitutional without more.” Horton v. California, 496 U.S. 128,
140 (1990). Because a particularized warrant is not required to list every minute location where an
item to be seized could be found within an area to be searched, a search does not exceed the scope
of a warrant so long as “it is reasonable to believe that the container [searched] could conceal items
of the kind portrayed in the warrant.” United States v. Dyer, 54 F.4th 155, 159 (3d Cir. 2022)
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(quoting United States v. Crooker, 688 F.3d 1, 8 (1st Cir. 2012)). This is an objective inquiry. See
Maryland v. Garrison, 480 U.S. 79, 84 (1987). In the context of digital devices, “because criminals
can easily alter file names and file extensions to conceal contraband,” a “cursory review of each
file” on a device does not exceed the scope of a warrant, so long as the search does not continue
once it is objectively clear the file does not contain the type of information specified in the warrant.
See United States v. Stabile, 633 F.3d 219, 239 (3d Cir. 2011) (quoting United States v. Williams,
592 F.3d 511, 522 (4th Cir. 2010)).
The extraction report from the 4301 phone demonstrates that the matters searched for fell
within the 23 categories listed on the First Warrant. To the extent that the Defendant challenges
the digital extraction that led to the seizure of this evidence as going beyond the scope of the
warrant, there is no allegation of evidence that the extraction went beyond a “cursory review” or
otherwise continued in files where it was objectively clear the information specified in the warrant
could not be found.
Defendant offers three arguments in favor of suppression relative to the search and seizure
of the 4301 phone, but none cut the mustard. The First Warrant was particularized, was supported
by probable cause, and was executed within its scope. And even if the above were not true,
suppression would not be justified due to the executing officer’s reliance on a warrant validly
issued by a United States Magistrate Judge in good faith. See United States v. Goldstein, 914 F.3d
200, 203–04 (3d Cir. 2019). Thus, the Court declines to suppress the evidence obtained via the
First Warrant and the search and seizure of the cell phone associated with the phone number (412)
545-4031.
The back half of Defendant’s Motion alleges that the affidavit sworn out by Special Agent
Erevia that was used to support the Second Warrant contains false statements and material
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omissions of fact, and he therefore seeks an evidentiary hearing pursuant to Franks v. Delaware,
438 U.S. 154 (1978). The Second Warrant authorized a search inside the car Defendant drove to
the meeting with the UO that led to his arrest. The search that was conducted in executing this
warrant resulted in the finding of a cellular phone associated with the number (412) 636-7017.
Defendant seeks the suppression of this phone and any of the digital matter contained within it and
which have been extracted.
The Fourth Amendment guarantees criminal defendants the right to “challenge the veracity
of statements made in an affidavit of probable cause that supported the issuance of a warrant.”
United States v. Aviles, 938 F.3d 503, 508 (3d Cir. 2019). A defendant is entitled to an evidentiary
hearing on their challenge if they can make “a substantial preliminary showing” that the affidavit
contained a false statement or omission that (1) was made knowingly and intentionally, or with
reckless disregard for the truth; and (2) was material to the finding of probable cause. Franks, 438
U.S. at 155–56. Crucially, “[t]o mandate an evidentiary hearing, the challenger’s attack must be
more than conclusory and must be supported by more than a mere desire to cross-examine.” Id. at
171.
Because “a substantial preliminary showing,” is a lower evidentiary burden than “a
preponderance of the evidence,” proof of knowledge and intentionality, or of reckless disregard
need not be exacting, but as noted must be substantial. See id. at 155–56. For example, in United
States v. Heilman, a memorandum of a pre-affidavit interview that demonstrated an affiant knew
of an omitted fact was a sufficient showing that the affiant knowingly and intentionally omitted it.
377 F. App’x 157, 179–80 (3d Cir. 2010). And for false statements or omissions to be made with
reckless disregard for the truth, the Third Circuit has held such a showing can be made without
extrinsic evidence, so long as there are “obvious reasons to doubt the truth of what [the affiant] is
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asserting” or the omitted facts are those “that any reasonable person would want to know.” United
States v. Yusuf, 461 F.3d 374, 383 (3d Cir. 2006) (quoting Wilson v. Russo, 212 F.3d 781, 783 (3d
Cir. 2000)).
To decide if false statements or omitted facts undermine a previous finding of probable
cause such that a Franks hearing is required, the fact must also be “material,” and a reviewing
court need only edit the underlying affidavit to correct the statements or include the omitted facts
and look to see if probable cause still exists. In Defendant’s case, he is challenging the existence
of probable cause to search his car. Probable cause to search a defendant’s car after his arrest exists
when there is a “fair probability that contraband or evidence of a crime” will be found there. United
States v. Donahue, 764 F.3d 293, 301 (3d Cir. 2014). When a defendant is the target of a sting
operation and is arrested upon arriving by car at a specific time and location pursuant to that sting
operation, there generally is a fair probability contraband or evidence of a crime is inside their
mode of transportation absent evidence to the contrary. See United States v. Dennis, 527 F. App'x
221, 223–224 (3d Cir. 2013).
Defendant asserts Agent Erevia made one false statement and omitted three material facts
in his affidavit. First, Defendant highlights the statement: “One other person, a black, female was
also in the [Defendant’s] vehicle and taken into custody.” (ECF No. 125-4 ¶ 19). Defendant claims
this is a false statement because allegedly Agent Erevia knew this woman was the Defendant’s
wife and that she had been released from the arrest scene and not taken into custody. The Defendant
also proffers the following three omitted facts:
• 	Agents in the undercover operation had no factual basis to believe any of Defendant’s
associates had participated in any alleged drug deliveries
• 	Agents in the undercover operation knew in advance that the Defendant was intending to
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deliver fentanyl and not methamphetamine, when he arrived the day he was arrested and
thus the agents also knew the Defendant did not possess methamphetamine that day
• 	Agents in the undercover operation knew that a protective sweep had already been
performed in the interior of the car and no evidence had been in plain view when that sweep
was performed
(ECF No. 125 ¶ 32). Defendant argues that the allegedly false statement regarding his wife,
combined with these three omitted facts, undermines any probable cause to search his car.
Defendant is owed a Franks hearing if he can make a substantial preliminary showing on
two fronts. The first front is to show the deficiencies in the underlying affidavit were made either
knowingly and intentionally, or with reckless disregard for the truth. The second front is to show
that the correction of false statements and inclusion of omitted facts undermines any finding of
probable cause because the referenced statements were material. For the following reasons,
Defendant cannot make a substantial preliminary showing on either front, and thus is not entitled
to an evidentiary hearing under Franks.
First, Defendant cannot make a substantial preliminary showing that the deficiencies in the
underlying affidavit were made either knowingly and intentionally, or with reckless disregard for
the truth. Defendant does not make a showing that the deficiencies were made knowingly and
intentionally because, while he does claim that Agent Erevia had knowledge both of the three
omitted facts Defendant submits and that the woman in Defendant’s car was his wife, Defendant
fails to provide any proof outside of his conclusory assertions to support this. See Yusuf, 461 F.3d
at 383 n.8. Nor can he show that the allegedly false statement was made with reckless disregard
for the truth, because there is no obvious reason to doubt the truth of the statement regarding the
identity of the woman in Defendant’s car made by a law enforcement agent. See id. at 385 (holding
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that absent an apparent contradiction a law enforcement agent’s affidavit is “generally presumed
to be reliable”).
And finally, he cannot show that the three proffered facts were recklessly omitted, because
no reasonable person would want to know them when considering if probable cause existed. As to
the first fact, any assurance of the involvement of Defendant’s associates in his illegal activity
barely relates (if at all) to the Defendant keeping additional evidence in his car. And the second
fact is not even an omitted fact, as the affidavit is clear that Defendant was only contacted to sell
fentanyl — not methamphetamine — to the UO the day he was arrested. Finally, the third fact is
of little consequence being that a protective sweep is by definition “a quick and limited search,”
and a reasonable person would not find the existence of a quick and limited search already
occurring necessary to making a probable cause determination in this case. Maryland v. Buie, 494
U.S. 325, 327 (1990).
But even if Defendant could make the requisite showing on the first front, he could not
make the necessary showing on the second. The Defendant arrived at the location where he had
arranged to sell illegal narcotics to an UO for the fourth time in his car, after communicating with
the UO using two different phone numbers, only one of which was associated with the phone the
agents who arrested the Defendant seized from his person. These facts alone make it a “fair
probability” that additional evidence of the alleged crimes, and particularly evidence of a second
cell phone, would be found in his car. See Donahue, 764 F.3d at 301. Correcting the allegedly false
statement about the Defendant’s wife and inserting each of the referenced omissions do not change
or undermine the existence of probable cause for the search or the issuance of the Second Warrant.
Thus, Defendant cannot make a substantial preliminary showing on either of the Franks
requirements, and thus is not entitled to an evidentiary hearing.
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Defendant’s Motion at ECF No. 125 arguing both that the First Warrant is invalid and
seeking a Franks hearing to challenge the Second Warrant is DENIED. The First Warrant was
valid, executed properly, and in any event would not result in suppression due to the good faith
exception. The Second Warrant was based on an affidavit with probable cause even when
considering its alleged deficiencies, and there is no evidence those alleged deficiencies were made
knowingly and intentionally or with reckless disregard for the truth.
VII. 	Supplemental Motion for Discovery (ECF No. 133).
Defendant has filed a Motion seeking the independent chemical weighing and testing of
methamphetamine samples in the Government’s possession pursuant to Federal Rule of Criminal
Procedure 16. These samples came from Defendant’s alleged sale of methamphetamine to the UO.
Defendant argues that the weight and composition of these samples will have an impact on the
potential sentence Defendant could receive under the United States Sentencing Guidelines if he is
eventually convicted. The Government opposes the Motion. (ECF No. 136). It argues such a test
is not within the scope of Rule 16, and in any event, allowing such testing would undermine the
ongoing integrity and accuracy of evidence tracking and thereby frustrate its ability to prosecute
its case. The parties filed a negotiated protective order to ensure that the integrity and accuracy of
evidence tracking remains intact if Defendant’s Motion should be granted and such testing were
to occur. (ECF No. 168). The Government was clear that notwithstanding its agreement to the
terms or entry of the protective order, it still believes such testing is not required in this case and
the Court should deny the Motion. (ECF No. 169).
Under Federal Rule of Criminal Procedure 16(a)(1)(E), a criminal defendant is entitled to
“inspect” any item within the government’s possession if “(i) the item is material to preparing the
defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was
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obtained from or belongs to the defendant.” The “clear reading of the rule demonstrates that a
defendant’s request for inspection must be permitted if any of the three circumstances exist, and it
is not necessary to establish all three or even two of the three.” United States v. Giardina, No.
CRIM. 04-29J, 2005 WL 3088441, at *7 (W.D. Pa. Nov. 17, 2005). In a case such as this one
where the Defendant is charged with drug trafficking, it is “most likely that both the actual
[narcotics] and the crime lab report will be introduced as evidence” at trial. Id. at 8.
The Government argues that even if this is true (and it does not dispute its veracity)
ordering such testing goes beyond the plain meaning of Rule 16. According to the Government,
the word “inspect” only allows the Defendant, either personally or through counsel, to look at the
samples and does not give him a right to ship it off to have a third party conduct the testing as
requested here. The Government argues that there is no case binding on this Court which reads the
word “inspect” in Rule 16 so broadly.
But while the Government is correct that there is no binding authority supporting
Defendant’s position on this point, there also is not persuasive authority supporting the
Government’s position. Indeed, the Government’s responsive briefing is devoid of any cite to a
case holding that the word “inspect” in Rule 16 is as limited as the Government suggests. The
single case it does cite in its favor denied a requested inspection because the defendant had not
made an adequate showing that the Government’s testing was inadequate. See United States v.
Turks, No. 3:17-CR-444, 2019 WL 3387770, at *2 (N.D. Ohio July 26, 2019). But notably, the
discovery request in that case was not based on Rule 16, and there is no requirement that inspection
directed pursuant to that Rule is only required upon a showing the Government had not adequately
inspected the evidence. See Fed. R. Crim. P. 16(a).
Meanwhile, the cases interpreting Rule 16 to entitle criminal defendants to independent
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testing of essential criminal evidence are legion. See United States v. Butler, 988 F.2d 537, 543
(5th Cir. 1993) (“Because the substance alleged to be cocaine base was obtained from [the
defendant] and because the government intended to use the substance as evidence at trial, we agree
that the court erred in refusing to grant appellant’s motion to test a sample of the substance.”);
United States v. Dog Taking Gun, 7 F. Supp. 2d 1118, 1121 (D. Mont. 1998) (holding Rule
16(a)(1)(E) entitles defendant to independent testing of DNA evidence); United States v. Noel, 708
F. Supp. 177, 177 (W.D. Tenn. 1989) (holding Rule 16(a)(1)(E) entitles defendant to independent
testing of heroin evidence); United States v. Bowers, No. 18-292, 2022 WL 7602419, at *2 (W.D.
Pa. Oct. 12, 2022) (holding Rule 16(a)(1)(E) entitles defendant to independent testing of crack-
cocaine evidence); United States v. Carrell, No. 05-1484, 2006 WL 8427721, at *1 (D.N.M. Aug.
2, 2006) (same).
This Court joins numerous others in holding that to “inspect” an item in the government’s
possession under Rule 16(a)(1)(E) entitles a criminal defendant to independent testing and
examination under protocols that will not compromise the evidentiary value of the evidence to be
inspected. Thus, Defendant’s Motion is GRANTED to the extent set out in this Order. However,
to ensure the independent testing will not hamper or frustrate the ability of the Government to fully
and fairly prosecute its case, the testing will occur in compliance with the protective order
consented to by both parties and filed on this Court’s docket at (ECF No. 168). Counsel for
Defendant shall supply the Court with a “clean” copy of the proposed Order for Court action.
VIII. 	Defendant’s Motion to Sever Counts (ECF No. 121), Motion to Strike Information
to Establish Prior Conviction (ECF No. 153).
Defendant’s Motion to Sever Counts (ECF No. 121) and Motion to Strike Information to
Establish Prior Conviction (ECF No. 153), will be HELD IN ABEYANCE pending the resolution
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of the evidentiary hearings ordered above, as suggested by defense counsel during the most recent
conference with the Court.
CONCLUSION
The following Motions are GRANTED on the specific terms stated above and subject to
further formalization of timelines in the pretrial Order of this Court:
• 	Motion For Advance Written Notice of “Other Bad Acts” Evidence (ECF No. 115)
• 	Motion For Advance Written Notice of Intent to Use Certain Impeachment Evidence (ECF
No. 116)
• 	Motion for Release of Brady Materials (ECF No. 117)
• 	Motion for Discovery (ECF No. 118)
• 	Motion for Production of Jencks Material (ECF No. 119)
An evidentiary hearing will be scheduled to address the issues raised in the following
Motions and their final disposition is HELD IN ABEYANCE pending the further development of
the record as noted above:
• 	Motion to Suppress Firearm Evidence (ECF No. 123)
• 	Motion to Suppress FaceTime Recordings, Text Messages, and Evidence of Cellular
Telephone Calls (ECF No. 124)
The following Motions are HELD IN ABEYANCE pending the resolution of the Motions
that are the subject of said evidentiary hearing:
• 	Motion to Sever Counts (ECF No. 121)
• 	Motion to Strike Information to Establish Prior Conviction (ECF No. 153)
The following Motions are DENIED:
• 	Motion for Discovery in Aid of Investigation into Selective Prosecution and/or Selective
Enforcement (ECF No. 122)
• 	Motion to Suppress Evidence of Phones Associated with (412) 545-4031 and (412) 636-
7017, the Fruits of the Search of Said Phones, and for Franks Hearing (ECF No. 125)
• 	Motion to Dismiss on Speedy Trial the Second Superseding Indictment (ECF No. 152)
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The following Motion is GRANTED as set out above, and as impacted by the entry of a
protective order as filed at (ECF No. 168) and which the Court will enter separately.
• 	Supplemental Motion for Discovery (ECF No. 133)
Counsel shall confer and advise the Court of the time frame they suggest for the conduct of the
evidentiary hearing referenced in this Order (in light of the arrangements necessary for witness
testimony), and the anticipated duration of such hearing. They shall also propose to the Court a
schedule for all expert disclosures, which may be staggered as between experts related to such
evidentiary hearing and trial. Counsel shall file a Joint Status Report as to all such matters within
21 days of the date of this Order. The terms of the Court’s Order at (ECF No. 130) excluding time
to allow for the litigation and disposition of pretrial motions remain in full force and effect
SO ORDERED this 14th day of October 2026.
/s/ Mark R. Hornak
Mark R. Hornak
United States District Judge
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