MEMORANDUM AND ORDER Ying Lin (“Defendant”) is charged by Second Superseding Indictment (“S-2″) with: (1) acting as an agent of a foreign government without prior notification to the Attorney General in violation of 18 U.S.C. §951(a); (2) conspiracy to commit wire fraud in violation of 18 U.S.C. §1349; (3) obstruction of justice in violation of 18 U.S.C. §§1512(c)(2) and 2; (4) conspiracy to obstruct justice in violation of 18 U.S.C. §1512(k); and (5) structuring financial transactions in violation of 31 U.S.C. §§5324(a)(3), 5324(d)(1) and 18 U.S.C. §2. See S-2, Dkt. Entry No. 87.Before the Court are two motions filed by Defendant on March 16, 2018. Defendant moves to dismiss Count One of the Second Superseding Indictment, which alleges that Defendant acted as an agent of a foreign government without prior notification to the Attorney General. See Def.’s Mot. to Dismiss (“Mot. to Dismiss”), Dkt. Entry No. 92. Defendant does not move to dismiss the four remaining Counts in the Second Superseding Indictment. See Id. The government opposed Defendant’s motion to dismiss on April 27, 2018. See Mem. in Opp. to Def.’s Mot. to Dismiss (“Opp. to Mot. to Dismiss”), Dkt. Entry No. 104. On May 18, 2018, Defendant replied. See Reply Response to Def.’s Mot. (“Reply to Mot. to Dismiss”), Dkt. Entry No. 114.Defendant also filed a motion to suppress statements and physical evidence on March 16, 2018. See Def.’s Mot. to Suppress Physical Evidence and Statements (“Suppression Mot.”), Dkt. Entry. No. 94. The government opposed the Suppression Motion on April 27, 2018. See Mem. of Law in Opp. to Suppression Mot. (“Suppression Opp.”), Dkt. Entry No. 105. Defendant replied on May 18, 2018. See Reply Response to Suppression Mot. (“Suppression Reply”), Dkt. Entry No. 115. On June 8, 2018, the court heard oral argument on both motions. For the reasons set forth below, Defendant’s Motion to Dismiss Count One of the Second Superseding Indictment is denied and Defendant’s Suppression Motion is denied in its entirety.BACKGROUNDOn August 24, 2015, the Government filed a sealed complaint against Defendant for her role in allegedly defrauding two financial entities and for allegedly evading reporting requirements by structuring financial transactions. See Sealed Compl. and Aff. in Support of an Arrest Warrant (“Compl.”), Dkt. Entry No. 1. Defendant was arrested and questioned by law enforcement agents on August 25, 2015. See Aff. of Ying Lin in Support of Suppression Mot. (“Lin Aff.”), Dkt. Entry No. 95, at 7. On the day of her arrest, Defendant, represented by appointed counsel, was arraigned for charges of wire fraud, bank fraud, and structuring financial transactions. See Dkt. Entry No. 3. Defendant retained her current counsel two days after her arraignment. See Lin Aff., at 7. On October 8, 2015, federal agents questioned Defendant at her home outside the presence of counsel. Id. at 8.On November 23, 2015, a federal grand jury returned an indictment charging Defendant with one count of structuring financial transactions. Indictment, Dkt. Entry No. 10. On August 31, 2016, the government charged Defendant by Superseding Indictment (S-1) with smuggling in violation of 18 U.S.C. §554, conspiracy to commit wire fraud, obstruction of justice, and conspiracy to obstruct justice, in addition to the previously charged structuring financial transactions count. See S-1, Dkt. Entry No. 40. Defendant moved to dismiss the smuggling charge, as well as the obstruction of justice and the conspiracy to obstruct justice charges of the Superseding Indictment. See Mot. to Dismiss S-1, Dkt. Entry No. 62. The Court dismissed the smuggling charge with prejudice, but denied Defendant’s motion to dismiss the obstruction of justice charges. See United States v. Ying Lin, 270 F. Supp.3d 631 (E.D.N.Y. 2017). In its dismissal of the smuggling charge, the Court held that the government failed to allege that Defendant exported or facilitated the exportation of “any merchandise, article, or object contrary to any law or regulation of the United States,” as required by the pertinent smuggling statute. Id. at 635.The government filed a Second Superseding Indictment on December 6, 2017, which charges Defendant with acting as an agent of a foreign government without prior notification to the Attorney General (Count One) in addition to the previously charged counts of conspiracy to commit wire fraud (Count Two), obstruction of justice (Count Three), conspiracy to obstruct justice (Count Four), and structuring financial transactions (Count Five). See S-2.The Second Superseding Indictment alleges that Defendant worked as a counter agent for an international air carrier (the “Carrier”) headquartered in the People’s Republic of China (“PRC”) at John F. Kennedy International Airport (“JFK Airport”) in Queens, New York from 2002 through the fall of 2015. See Id. at 2. Defendant allegedly used her position as a counter agent to smuggle items onto Carrier flights departing from JFK Airport to the PRC and to carry out other tasks at the direction and control of PRC agents working at the PRC Mission and PRC Consulate in exchange for benefits beyond her compensation as a Carrier employee. Id. at 5. According to the Second Superseding Indictment, on multiple occasions between January 2010 and April 2016, Defendant accepted packages marked “no ticketed passenger” from individuals from the PRC Mission and PRC Consulate that were transported from JFK Airport to the PRC as if the packages were checked bags in violation of Transportation Security Administration (“TSA”) regulations. Id. at
6, 17-21. It is further alleged that, or about 2012, after another Carrier employee refused to accept an unaccompanied bag, Defendant admonished said employee that the practice of transporting packages from JFK Airport to the PRC as unaccompanied luggage on behalf of PRC agents was a longstanding one. Id. at 8. The Carrier’s general manager subsequently distributed a letter purportedly authorizing Carrier employees to accept unaccompanied baggage from individuals from the PRC Mission for shipping on Carrier flights from JFK Airport to the PRC. Id. at 9.The Second Superseding Indictment further alleges that Defendant checked unaccompanied bags under the names of actual Carrier flight passengers. Id. at 10. For example, on June 26, 2014, Defendant allegedly checked in, under the names of actual Carrier flight passengers traveling to the PRC, two large shrink-wrapped boxes from two PRC Military Officials who were not Carrier passengers. Id. On July 24, 2014, Defendant allegedly assisted a PRC Military Officer who was about to depart on an outbound Carrier flight and had passed through a TSA checkpoint by taking a SIM card from the Officer’s phone and bringing the SIM card to a second PRC Military Officer on the other side of the TSA checkpoint to ensure that the SIM card would not be subject to further screening. Id. at 11. Defendant allegedly received benefits from the PRC Mission and the PRC Consulate, including tax-exempt purchases of discounted liquor and electronic devices and free contracting work at Defendant’s residence by PRC construction workers, in exchange for Defendant’s actions conducted under the direction and control of PRC Military Officers and other PRC government officials. Id. at 12.The government obtained and executed multiple warrants in connection with the charges against Defendant. On January 12, 2016, the government obtained a warrant to search Defendant’s personal Microsoft account (the “Microsoft Warrant”). See Aff. of Deborah Colson in Support of Suppression Mot. (“Colson Aff.”), Dkt. Entry No. 97, at Ex. B. An investigative agent submitted an affidavit in support of the Microsoft Warrant (the “Microsoft Affidavit”). Id. at Ex. A. On April 4, 2016 and April 5, 2016, the government obtained warrants to search Defendant’s home and electronic devices (the “Home and Phone Warrant”). Id. at Ex. D. An investigative agent submitted an affidavit in support of the Home and Phone Warrant (the “Home and Phone Affidavit”). Id. at Ex. C. The government obtained a search warrant to search one of Defendant’s safe deposit boxes (the “Box 5366 Warrant”) on April 5, 2016. Id. at Ex. G. An investigative agent’s affidavit supported that warrant (the “Box 5366 Affidavit”). Id. at Ex. F. On April 11, 2016, the government obtained a warrant to search another safe deposit box corresponding to a key found in Defendant’s home (the “Box 10239 Warrant”). Id. at Ex. J. On April 20, 2016, the government obtained a warrant to search two other safe deposit boxes corresponding to keys found in Defendant’s home (the “Box 365 Warrant”). Id. at Ex. L. The government seized physical and electronic evidence during searches conducted by agents pursuant to the aforementioned warrants.In moving to dismiss, Defendant argues that Count One of the Second Superseding Indictment fails to state an offense under 18 U.S.C. §951. See generally, Mot. to Dismiss. Defendant also seeks suppress: evidence seized from Defendant’s email account pursuant to the Microsoft Warrant; evidence seized from Defendant’s home pursuant to the Home and Phone Warrant; and evidence seized from safe deposit boxes pursuant to the Box 5366 Warrant, the Box 10239 Warrant, and the Box 365 Warrant. See generally, Suppression Mot. Defendant alleges that the searches authorized by those warrants violated her Fourth Amendment rights because the warrants were not supported by probable cause and were overbroad, and because the searches exceeded the scope of the warrants. Id. Defendant also seeks to suppress the statements she made to agents outside the presence of her attorney on October 8, 2015 (the “October 8, 2015 interrogation”) as a violation of her Sixth Amendment right to counsel. Id.DISCUSSIONI. Defendant’s Motion to Dismiss Count One of the Second Superseding IndictmentA. Legal StandardPursuant to Federal Rule of Criminal Procedure 12(b)(3)(B), a defendant may move to dismiss an indictment for various defects, including “a failure to state an offense.” Fed. R. Crim. P. 12(b)(3)(B)(v). “A motion to dismiss an indictment must satisfy a high standard.” United States v. Brooks, 2009 WL 3644122, at *2 (E.D.N.Y. Oct. 27, 2009) (citations and internal quotations omitted). This is because “[a]n indictment…need not be perfect, and common sense and reason are more important than technicalities.” United States v. De Le Pava, 268 F.3d 157, 162 (2d Cir. 2001) (citation omitted). A court must “accept[] the facts alleged in the indictment as true and determine[] only whether the indictment is ‘valid on its face.’” Brooks, 2009 WL 3644122, at *2 (quoting Costello v. United States, 350 U.S. 359, 363 (1956)).The United States Supreme Court has held that “an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117 (1974) (citations omitted); see also, United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998) (“[A]n indictment must charge a crime with sufficient precision to inform the defendant of the charges he must meet and with enough detail that he may plead double jeopardy in a future prosecution based on the same set of events.”) (internal quotations and citation omitted). “It is generally sufficient that an indictment set forth the offense in the words of the statute itself, as long as [they]…fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.” Hamling, 418 U.S. at 117-18 (citations and internal quotations omitted). “Essentially, the indictment must…be a plain, concise, and definite written statement of the essential facts constituting the offense charged.” Brooks, 2009 WL 3644122, at *2 (citing Fed. R. Crim. P. 7(c)(1)).Title 18 U.S.C. §951 provides: “Whoever, other than a diplomatic or consular officer or attaché, acts in the United States as an agent of a foreign government without prior notification to the Attorney General” shall be punished. 18 U.S.C. §951(a). Subsection (d) of §951 defines “agent of a foreign government” as “an individual who agrees to operate within the United States subject to the direct or control of a foreign government or official.” 18 U.S.C. §951(d). “To violate §951, (1) a person must act; (2) the action must be taken at the direction of or under the control of a foreign government; and (3) the person must fail to notify the Attorney General before taking such action.” United States v. Duran, 596 F.3d 1283, 1291 (11th Cir. 2010) (citing 18 U.S.C. §951(a) and (d), 28 C.F.R. §73.1(a) and §73.3). The implementing regulation, 28 C.F.R. §73.1(a) defines “agent” as “all individuals acting as representatives of, or on behalf of, a foreign government or official, who are subject to the direction or control of that foreign government or official…”B. AnalysisCount One of the Second Superseding Indictment charges that “In or about and between January 2010 and April 2016,…[Defendant] did knowingly act in the United States as an agent of a foreign government, to wit: the PRC, without prior notification to the Attorney General…” S-2 at 38. Count One incorporates factual allegations against Defendant set forth in the Second Superseding Indictment, including facts alleging that Defendant used her position as a Carrier counter agent to smuggle items onto flights departing from JFK to the PRC at the direction and under the control of PRC agents. Id. at
