MEMORANDUM AND ORDER Before the Court is Defendant Jaime Rosario Jr.’s motion to (1) sever his case from Defendant Jeanluc Joiles and (2) suppress certain evidence seized from his cell phone. (See dkt. no. 85 (“Mot.”); see also dkt. no. 95 (“Reply”).) The Government opposes the motion. (See dkt. no. 93 (“Opp.”).) On May 12, 2021, the Court issued an order denying Mr. Rosario’s motion to sever, noting that a written opinion would arrive in due course. (See dkt. no. 102.) The basis for that ruling is set forth in further detail below. For the reasons set forth, the motion to suppress is DENIED. I. Background On November 13, 2019, the Government charged Mr. Rosario and Mr. Joiles with one count of conspiring to distribute over 500 grams of methamphetamine, a quantity of fentanyl, and a quantity of cocaine, in violation of 21 U.S.C. §846, 841(b)(1)(A), and 841(b)(1)(C). (See Indictment, dated Nov. 13, 2019 [dkt. no. 6], 3.) Mr. Joiles was separately charged with one count of distributing fentanyl resulting in the death of Rachel Spiteri on June 19, 2019, in violation of 21 U.S.C. §841(a)(1) and 841(b)(1)(c). (Id.
4-6.) Finally, the Government charged Mr. Rosario with one count of possessing a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. §924(c)(1)(A)(i) and 2. (Id. 7.) In connection with Mr. Rosario’s arrest on October 25, 2019, law enforcement recovered Mr. Rosario’s cellular phone (the “Subject Device”). (See Opp. at 3, 15.) On November 26, 2019, this Court authorized law enforcement to search the electronically stored information (“ESI”) on the Subject Device (the “November 2019 Warrant”) and seize “evidence, fruits, and instrumentalities of violations of” narcotics trafficking, conspiracy to traffic in narcotics (21 U.S.C. §§841, 846), and firearms possession in relation to drug trafficking crimes (21 U.S.C. §§924(c) and 2) (collectively, the “Subject Offenses”). (See Mot., Ex. G at 30-31.) The November 2019 Warrant limited the timeframe for the majority, but not all, of the categories of items that law enforcement could seize during the search to April 2019 through the present, i.e., November 26, 2019. (Id. at 31-32.) Following the issuance of the November 2019 Warrant, the Government determined that a third-party vendor was required to decrypt the Subject Device. (See Opp. at 16.) Upon learning that the Subject Device was inadvertently never sent to the third-party vendor, the Government obtained a new warrant for the Subject Device on December 31, 2020 (“the December 2020 Warrant”). (See Mot., Ex. G at 1.) Similar to the November 2019 Warrant, the December 2020 Warrant limited the timeframe for the majority of categories of materials to be seized to April 1, 2019 through October 25, 2019 (the “Relevant Time Period”). (See id. at Attach. A.) The following categories of materials were not limited to a particular timeframe: a. “[C]ontact information for co-conspirators in the Subject Offenses, including but not limited to the identity, phone numbers, and addresses of suspects and co-conspirators;” b. “[B]ank records, checks, credit card bills, account information, and other financial records relating to the Subject Offenses;” c. “[D]igital photographs and video relating to the Subject Offenses;” and d. “[E]vidence of user attribution showing who used or owned the Subject Device at the time the records and items described in this warrant were created, edited, or deleted, such as logs, phonebooks, saved usernames and passwords, documents, and browsing history.” (See id.) The December 2020 Warrant, like the November 2019 Warrant, provided procedures for searching ESI on the Subject Device. The December 2020 Warrant states, “law enforcement may use various techniques to determine which files or other ESI contain evidence or fruits of the Subject Offenses. Such techniques may include…conducting a file-by-file review by ‘opening’ or reading the first few ‘pages’ of such files in order to determine their precise contents (analogous to performing a cursory examination of each document in a file cabinet to determine its relevance).” (Mot., Ex. G at 8.) The December 2020 Warrant specified that “[l]aw enforcement personnel will make reasonable efforts to restrict their search to dates falling within the categories of evidence specified in the warrant. Depending on the circumstances, however, law enforcement may need to conduct a complete review of all the ESI from the Subject Devices to locate all data responsive to the warrant.” (Id.) Upon receiving a copy of the Subject Device’s extraction in February 2021, the Government employed the Cellebrite program to conduct its review. (See Opp. at 18.) Cellebrite allows users to review text message communications as a continuous chain between chat participants. (Id.) During its review of the Subject Device for items responsive to the December 2020 Warrant, the Government reviewed a series of text message chains that predated but continued through the Relevant Time Period containing communications regarding narcotics trafficking prior to April 1, 2019. (Id. at 18-19.) These communications indicated to the Government that Mr. Rosario participated in the Subject Offenses, using the Subject Device, prior to April 1, 2019. Shortly after, the Government applied for and obtained a new search warrant for the Subject Device on February 18, 2021 (the “February 2021 Warrant”) that permitted the Government to search the Subject Device for the categories of evidence identified in the December 2020 Warrant without time limitations.1 (Id. at 19; see Mot., Ex. H at 5.) On March 19, 2021, Mr. Rosario filed the instant motions. (See Mot.) On May 12, 2021, the Court denied Mr. Rosario’s motion to sever and indicated that a written opinion would follow. (See dkt. no. 102.) This is that opinion. II. Discussion A. Motion to Sever i. Applicable Law Federal Rule of Criminal Procedure 8(b) permits joinder of two or more defendants in the same indictment or information “if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses.” Fed. R. Crim. P. 8(b). In the Court of Appeals, the “same series of acts or transactions” “mean[s] that joinder is proper where two or more persons’ criminal acts are unified by some substantial identity of facts or participants, or arise out of a common plan or scheme.” United States v. Cervone, 907 F.2d 332, 341 (2d Cir. 1990) (internal quotation marks and citations omitted). In analyzing joinder under Rule 8(b), courts must “apply a commonsense rule to decide whether, in light of the factual overlap among charges, joint proceedings would produce sufficient efficiencies such that joinder is proper notwithstanding the possibility of prejudice to either or both of the defendants resulting from the joinder.” United States v. Rittweger, 524 F.3d 171, 177 (2d Cir. 2008) (internal quotation marks and citation omitted). Federal Rule of Criminal Procedure 14(a) provides that “[i]f the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires.” Fed. R. Crim. P. 14(a). “Rule 14 does not require severance even if prejudice is shown; rather, it leaves the tailoring of the relief to be granted, if any, to the district court’s sound discretion.” Zafiro v. United States, 506 U.S. 534, 538-39 (1993) (citing United States v. Lane, 474 U.S. 438, 449, n.12 (1986); Opper v. United States, 348 U.S. 84, 95 (1954)). If the Government properly joined defendants under Rule 8(b), then “a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” United States v. Cacace, 796 F.3d 176, 192 (2d Cir. 2015) (quoting Zafiro, 506 U.S. at 539). “Differing levels of culpability and proof are inevitable in any multi-defendant trial and, standing alone, are insufficient grounds for separate trials. Even joint trials involving defendants who are only marginally involved alongside those heavily involved are constitutionally permissible.” United States v. Spinelli, 352 F.3d 48, 55 (2d Cir. 2003) (internal quotation marks and citations omitted); see also United States v. Nerlinger, 862 F.2d 967, 973 (2d Cir. 1988) (denying a motion to sever where defendants “were not alleged to have had any direct contact with regard to the conspiracy and that their respective acts committed in furtherance of the conspiracy occurred during chronologically distinct periods…[but] were alleged to have participated in the same conspiracy and evidence of the central features of that conspiracy…was relevant to both defendants”). There is “a preference in the federal system for joint trials of defendants who are indicted together. Joint trials play a vital role in the criminal justice system, as they promote efficiency and serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.” United States v. O’Connor, 650 F.3d 839, 858 (2d Cir. 2011) (internal quotation marks and citations omitted). “‘[L]ess drastic measure [than severance], such as limiting instructions, often will suffice’ to cure any risk of prejudice and permit joinder.” United States v. Page, 657 F.3d 126, 129 (2d Cir. 2011) (quoting Zafiro, 506 U.S. at 539). “In deciding a motion for severance, a court must consider, among other factors: (1) possible conflicts between defense theories, (2) the possibility that the moving defendant will be prejudiced by a joint trial, and (3) the complexity of a joint trial, including the number of defendants, the estimated trial length, disparities in proof offered against the various defendants, and the defendants’ differing roles in the alleged criminal schemes.” United States v. Hameedi, No. 17 Cr. 137 (JGK), 2017 WL 5152991, at *3 (S.D.N.Y. Nov. 3, 2017) (citing United States v. Guillen-Rivas, 950 F. Supp. 2d 446, 457 (E.D.N.Y. 2013)). For a conspiracy charge, “[t]he established rule is that a non-frivolous conspiracy charge is sufficient to support joinder of defendants under” Rule 8(b). Nerlinger, 862 F.2d at 973 (citing example cases). “Where a defendant is a member of a conspiracy, all the evidence admitted to prove that conspiracy, even evidence relating to acts committed by co-defendants, is admissible against the defendant.” United States v. Salameh, 152 F.3d 88, 111 (2d Cir. 1998) (citation omitted). ii. Application Severance of Mr. Rosario’s trial pursuant to Rule 8(b) or Rule 14(a) is not warranted. Mr. Rosario argues that the Court should sever his trial from Mr. Joiles’ trial on two grounds: (1) he is improperly joined with Mr. Joiles under Count 1 of the indictment because the Government has no evidence that Mr. Rosario participated in a conspiracy to possess and sell fentanyl; and (2) because the Government lacks evidence that a conspiracy existed between Mr. Joiles and Mr. Rosario to traffic pills containing fentanyl, the allegations in Count 1 and Count 2 of the indictment are not part of the “same act or transaction, or in the same series of acts or transactions” as defined in Rule 8(b). (See Mot. at 9-13.) Mr. Rosario also argues that even if joinder of Mr. Rosario and Mr. Joiles is proper under Rule 8(b), the Court should server Mr. Rosario’s trial pursuant to Rule 14(a). (See id. at 13-16.) The Court finds no merit in Mr. Rosario’s argument that the Government’s allegation that Mr. Rosario and Mr. Joiles conspired to sell fentanyl is frivolous. Count 1 of the indictment charges that from June 2019 through October 2019, Mr. Joiles and Mr. Rosario conspired to possess and distribute methamphetamine, cocaine, and fentanyl in violation of 21 U.S.C. §846, 841(b)(1)(A), and 841(b)(1)(C). (Dkt. no. 6
