U.S. v. Lauria

On appeal from a judgment of conviction entered in the United States District Court for the Southern District of New York (Román, J.) on multiple counts of substantive and conspiratorial Hobbs Act robbery and of the brandishing of a firearm during two crimes of violence (i.e., the charged robberies), defendant Anthony Molina argues that the court erred (1) in relying on the inevitable discovery doctrine to deny his motion to suppress evidence obtained through warrants supported by concededly defective affidavits, and (2) in charging the jury that a gun constitutes a firearm and refusing to give his requested jury instruction. Because we agree that the inevitable discovery doctrine does not apply in the circumstances of this case, and because the conceded misstatements in the affidavits were material to the issuing magistrate judges’ probable cause determinations, remand is required for the district court to conduct a hearing to determine if the challenged evidence was admissible under the standard identified in Franks v. Delaware, 438 U.S. 154 (1978). As to the jury charge, the district court erred in instructing the jury that a gun is a firearm, see United States v. Rosa, 507 F.3d 142, 145 n.1 (2d Cir. 2007), and because we cannot conclude that this error was harmless as a matter of law, we vacate Molina’s firearms convictions. VACATED AND REMANDED. REENA RAGGI, C.J. Defendant Anthony Molina stands convicted after a jury trial in the United States District Court for the Southern District of New York (Nelson S. Román, Judge) of conspiratorial and substantive Hobbs Act robbery of a Connecticut Verizon store in 2017 (Counts I and II); the brandishment of a firearm in the commission of a crime of violence (i.e., the robbery charged in Count II) (Count III); conspiratorial and substantive Hobbs Act robbery of a New York Verizon store in 2019 (Counts IV and V); and the brandishment of a firearm in the commission of a crime of violence (i.e., the robbery charged in Count V) (Count VI). See 18 U.S.C. §§1951, 924(c)(1)(A)(ii) & 2. Now incarcerated, serving a total prison term of 192 months (i.e., 16 years), Molina appeals his conviction arguing that the district court erred in (1) relying on the “inevitable discovery” doctrine to deny his motion to suppress evidence obtained through warrants supported by affidavits containing conceded misstatements, and (2) charging the jury that a gun constitutes a firearm and refusing to give Molina’s requested clarifying instruction that “[a] pellet gun, imitation, facsimile or toy gun does not constitute a firearm within the meaning of the statute.” App’x 58-59. For reasons stated in this opinion, we vacate the district court’s denial of Molina’s motion to suppress certain evidence obtained through defective warrants on the ground of inevitable discovery. That exception to the exclusionary rule does not apply here, where the government cannot show that it inevitably would have discovered the challenged evidence through independent means but, instead, shows only that it could have discovered that evidence by redressing flaws in the warrant affidavits revealed by Molina’s suppression motion. In the absence of inevitable discovery, and because the conceded misstatements in the warrant affidavits were material to the issuing magistrate judges’ probable cause determinations, the district court could not admit the challenged evidence without conducting a hearing under Franks v. Delaware, 438 U.S. 154 (1978), to determine the affiant’s state of mind in making the misstatements at issue. Accordingly, we remand for such a hearing, with instructions that the district court maintain or vacate Molina’s convictions on Counts I, II, IV, and v. depending on its Franks-hearing findings. As to the firearms counts of conviction, we conclude that the district court erred in charging the jury that “a gun is a firearm,” App’x 63, in light of this court’s precedent holding that “not all guns are firearms,” United States v. Rosa, 507 F.3d 142, 145 n.1 (2d Cir. 2007). Because we cannot conclude that this error was harmless, we vacate Molina’s convictions under Counts III and VI and remand for further proceedings consistent with this opinion, including possible retrial with a correct jury instruction. BACKGROUND We begin by recounting particulars of the charged crimes as supported by evidence offered at Molina’s 2021 trial. Thereafter, and as necessary to resolve Molina’s appeal, we discuss the more limited facts (both accurate and mistaken) submitted in affidavits to support the challenged warrants. I. The Charged Robberies On August 10, 2017, defendant Anthony Molina, together with co-conspirators Anthony Lauria and Brian Rodriguez, committed the armed robbery of a Verizon Wireless store in New Milford, Connecticut (“New Milford Robbery”). Some eighteen months later, on February 15, 2019, the three men committed the armed robbery of a Verizon Wireless store in Mahopac, New York (“Mahopac Robbery”). Both robberies were captured on surveillance footage, which demonstrated many shared characteristics, including the early evening time of the robberies; two men (i.e., Molina and Rodriguez) robbing the stores, while a third (i.e., Lauria) acted as getaway driver; the use of zip-ties to restrain victims; the brandishment of a gun during each robbery; and the use of the same, or a similar, Honda Accord to flee the robbery scene.¹ Because Molina and Rodriguez used a mask or a hat and sunglasses to conceal their faces during the robberies, no eyewitness identifications were obtained. Instead, the robbers’ identities were established largely through forensic evidence, as detailed herein. A. New Milford Robbery At 7:22 p.m. on August 10, 2017, Lauria entered the target New Milford Verizon store and asked a clerk about purchasing an iPhone. After exiting the store without making a purchase, Lauria walked toward a dark-colored Honda Accord with distinctive tire rims. Soon after, at 7:34 p.m., Rodriguez and Molina exited that Honda and entered the Verizon store. Brandishing a gun, Molina restrained two persons in the store with zip-ties and disabled many of the store’s security systems. He and Rodriguez then proceeded to steal 77 Apple iPads and iPhones valued at $48,680 from the store’s back room before fleeing the scene. B. Mahopac Robbery At 7:40 p.m. on February 15, 2019, what appeared to be the same Honda sedan seen at the New Milford Robbery pulled up to the target Mahopac Verizon store. Within minutes, Rodriguez and Molina exited the Honda and entered the store. Once again, one of the robbers disabled many of the store’s security systems. Also, Molina brandished a gun and zip-tied the wrists of a store clerk. This time, he and Rodriguez stole iPhones and other electronic devices valued at $54,745 from the store’s safe before fleeing the scene. II. Investigations To Identify the Robbers A. Fingerprint Implicates Lauria in the New Milford Robbery Soon after the New Milford Robbery, that town’s police began an investigation to identify the robbers, inter alia, taking witness statements, reviewing video surveillance footage, and recovering a fingerprint from the door of the target Verizon store. A comparison of that fingerprint with those on file with New York State would later reveal the recovered print to match the right thumb of Anthony Lauria. B. Anonymous Tip Implicates Lauria, Molina, and Rodriguez in the New Milford Robbery Town police also posted surveillance video of the New Milford Robbery online. On January 8, 2018, Connecticut State Police received an anonymous tip from two persons who had seen the video and identified the robbers as Lauria, Rodriguez, and Molina. The tipsters provided Instagram account and contact information for these three persons — specifically, phone numbers ending in -3972 for Lauria, -1912 for Rodriguez, and -9885 for Molina. By querying a law enforcement database, New Milford police were able to corroborate the tipsters’ attribution of the -3972 number to Lauria.² Further, by comparing a New York arrest photo of Lauria with surveillance footage of the unmasked man who entered and left the Verizon store shortly before the New Milford Robbery, town police were able to place Lauria at the scene of that crime. C. Cell Phone Records 1. The February 15 and May 18, 2018 State Warrants: Linking Lauria’s -3972, Rodriguez’s -1912, and Molina’s -4879 Cell Phones to the New Milford Robbery On February 15, 2018, New Milford police obtained from a Connecticut Superior Court judge a warrant for toll records and historical cell-site location information (“CSLI”) for Lauria’s -3972 cell phone for the month of August 2017. On May 18, 2018, police obtained another state warrant for the same information and time period for Rodriguez’s -1912 cell phone. Responsive records revealed that throughout August 2017 these two cell phones were used exclusively in New York State except on August 10, 2017, i.e., the date of the New Milford Robbery, when the phones were both used in New Milford. Between 3:06 p.m. and 11:47 p.m. on that date — i.e., in an approximately nine-hour span that included the time of the New Milford Robbery — Rodriguez’s -1912 cell phone communicated at least six times with Lauria’s -3972 cell phone and at least seven times with a then-unidentified cell phone with a call number ending in -4879.³ 2. The March 4, 2019 SDNY Warrant: Linking Lauria’s -3972, Rodriguez’s -1912, and Molina’s -2454 Cell Phones to the Mahopac Robbery On March 4, 2019, approximately two weeks after the Mahopac Robbery, an FBI agent obtained from a magistrate judge in the Southern District of New York a “tower extraction” warrant directing several cell service providers to supply phone numbers that had accessed cell towers closest to the Mahopac Verizon store on February 15, 2019, between 6:30 p.m. and 8:30 p.m. — i.e., a two-hour period including the time of that store’s robbery. In response, AT&T reported that its records for the specified period showed that Rodriguez’s -1912 cell phone had used a cell tower near the victimized Mahopac store to communicate with Lauria’s -3972 cell phone. Meanwhile, Sprint reported that its records for the specified period showed that Lauria’s -3972 cell phone had used a cell tower near the Mahopac store to communicate with both Rodriguez’s -1912 cell phone and a then-unidentified cell phone with a call number ending in -2454. No records obtained pursuant to the March 4, 2019 warrant, however, revealed the location of the -2454 cell phone when it communicated with Lauria’s -3972 cell phone on the date of the Mahopac Robbery.⁴ 3. The Challenged March 29 and April 23, 2019 SDNY Warrants: Further Linking Lauria’s -3972, Rodriguez’s -1912, and Molina’s -2454 Cell Phones to the Mahopac Robbery Molina does not challenge any of the warrants discussed thus far or the evidence obtained thereby. Rather, his appeal focuses on warrants obtained by the FBI on March 29 and April 23, 2019 (hereafter, “March 29 Warrant” and “April 23 Warrant”), as well as on subsequent warrants to the extent they were obtained in reliance on evidence resulting from the March 29 and April 23 Warrants. The March 29 Warrant required cell phone servicers to provide toll records and historical CSLI for Lauria’s -3972 cell phone, Rodriguez’s -1912 cell phone, and Molina’s -2454 cell phone (1) for the six-week period from July 10 to August 24, 2017, which included the August 10, 2017 date of the New Milford Robbery; and (2) for the six-week period from January 22 to March 5, 2019, which included the February 15, 2019 date of the Mahopac Robbery. See Molina’s Mem. of Law in Supp. of Mot. to Suppress Evid. Ex. F at Warrant 6, United States v. Lauria, No. 19-CR-449 (NSR) (S.D.N.Y. June 8, 2020), Dkt. No. 55-6.⁵ Responsive records showed that all three cell phones were used in the vicinity of the Mahopac Verizon store on the date of that store’s robbery, but were not used in Mahopac at any other time during the month of February 2019. Records further confirmed that Lauria’s -3972 and Rodriguez’s -1912 cell phones (but not Molina’s -2454 cell phone) were used in the vicinity of the New Milford store on the date of that store’s robbery, but were not used in New Milford or anywhere else in the state of Connecticut at any other time during the month of August 2017. The April 23 Warrant required that for Rodriguez’s -1912 and Molina’s -2454 cell phones, cell phone servicers provide toll records and historical CSLI for the 82-day period from February 1 to April 23, 2019; prospective CSLI for the 45-day period from April 23 to June 7, 2019; and prospective pen register information for the 60-day period from April 23 to June 22, 2019. See Molina’s Mem. of Law in Supp. of Mot. to Suppress Evid. Ex. G at Warrant

7-9, United States v. Lauria, No. 19-CR-449 (NSR) (S.D.N.Y. June 8, 2020), Dkt. No. 55-7. The record reveals little about the results of this warrant but, as Molina himself observes, it appears not to have “uncover[ed] any relevant evidence in addition to that uncovered by the March 29, 2019, Cell Site Warrant.” Appellant Br. 16 n.7. 4. The April 29-30, 2019 SDNY Warrants and the Robbers’ Arrests Approximately one week later, on April 29, 2019, an FBI agent filed a joint criminal complaint against Lauria, Rodriguez, and Molina, and obtained federal warrants permitting the use of cell-site simulators (known as “triggerfish”) for Rodriguez’s -1912 and Molina’s -2454 cell phones to allow law enforcement agents to locate and arrest the men.⁶ Rodriguez and Molina were both arrested the next day, with the -1912 cell phone seized from the former, and the -2454 cell phone seized from the latter. Pursuant to further warrants obtained on April 30, 2019, agents searched the seized phones. From Rodriguez’s -1912 cell phone, they retrieved at least seven saved contacts for “Molina.” One entry was for Molina’s -2454 cell phone. Another entry, denominated “Molina 4,” had a call number ending in -4879 — i.e., the heretofore unidentified cell phone that had been in repeated contact with Rodriguez’s -1912 cell phone on the day of the New Milford Robbery.⁷ 5. The May 23, 2019 SDNY Cell-Site Warrant Links Molina’s -4879 Cell Phone to the New Milford Robbery On May 23, 2019, agents procured a federal warrant for toll records and historical CSLI for Molina’s -4879 cell phone. Responsive records showed that Molina’s -4879 cell phone was used in New Milford on the day of the New Milford Robbery. 6. The June 3, 2019 SDNY Warrant: DNA Links Molina to the Mahopac Robbery A further June 3, 2019 warrant authorized federal agents to collect DNA samples from Lauria, Molina, and Rodriguez. Subsequent analysis revealed that Molina’s DNA was a likely contributor to the DNA on a zip-tie used to restrain a victim of the Mahopac Robbery. III. District Court Proceedings A. Suppression Motion On June 8, 2020, Molina moved, inter alia, to suppress evidence seized pursuant to the March 29 and April 23 Warrants, arguing that the affidavits used to support these warrants contained material misrepresentations. Molina also moved to suppress evidence seized pursuant to subsequent warrants to the extent those warrants depended on evidence derived from the March 29 and April 23 Warrants to establish probable cause. The government conceded misstatements in the March 29 and April 23 Warrant affidavits but argued that the inevitable discovery and corrected affidavit doctrines allowed it to avoid suppression. 1. The Acknowledged Misstatements The March 29 Warrant affidavit contained numerous misstatements, one of which was corrected in the April 23 Warrant affidavit, but most of which were not.⁸ Instead, they were repeated therein. The misstatements are not easily untangled from the totality of facts. Nevertheless, we endeavor to do so now. First, as to the New Milford Robbery, the affidavits misstate that toll records for Lauria’s -3972 cell phone showed that, on August 10, 2017, shortly before and shortly after the New Milford Robbery, that phone was in communication with both Rodriguez’s -1912 and Molina’s -2454 cell phones. See March 29 Warrant Aff. 8(i); April 23 Warrant Aff. 9(i). In fact, the FBI did not then possess any records of communication on August 10, 2017, between Lauria’s -3972 and Molina’s -2454 cell phones.⁹ Rather, at the time of the March 29 Warrant, the FBI possessed records showing communication between Lauria’s -3972 and Rodriguez’s -1912 cell phones and between Rodriguez’s -1912 cell phone and a then-unidentified -4879 cell phone. The FBI would not link that last number to Molina until April 30, 2019, when Rodriguez was arrested and a search of his seized -1912 cell phone showed the -4879 cell phone listed as “Molina 4.” In sum, the warrant affidavits incorrectly reported that electronic records had linked Molina to the New Milford Robbery when there was then no basis for that assertion.¹⁰ Second, as to the Mahopac Robbery, the affidavits repeatedly misdate that crime as February 19, 2019, when it in fact occurred days earlier, on February 15, 2019. See March 29 Warrant Aff.