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United States v. McCray

United States District Court, N.D. Georgia, Atlanta Division

July 25, 2017

WILLIAM CALVIN McCRAY, a/k/a “Skrill Will, ” Defendant.



         This matter is before the Court on Magistrate Judge Alan J. Baverman's Final Report and Recommendation [93] (“R&R”). The R&R recommends the Court deny Defendant William Calvin McCray's (“Defendant” or “McCray”) Motions to Suppress Evidence and Statements and for Return of Property [13], [15], [20], [21]. The R&R also recommends the Court deny McCray's Motions to Dismiss [66], [83]. Also before the Court are McCray's Objections to the R&R [101].

         I. BACKGROUND

         A. Facts[1]

         On June 2, 2015, McCray was indicted on charges of conspiracy to commit sex trafficking of a minor, in violation of 18 U.S.C. § 1594(c) (Count One); the substantive offense of sex trafficking of a minor, in violation of 18 U.S.C. §§ 1591(a), (b)(1) and (b)(2) (Count Two); and transportation of a minor for prostitution, in violation of 18 U.S.C. § 2423(a) (Count Three). On April 28, 2016, the grand jury returned the first superseding indictment against McCray, adding a charge of obstruction in violation of 18 U.S.C. § 1591(d) as a result of prohibited contact between him and his victim between August 2015 and February 2016. On December 13, 2016, the grand jury returned the second superseding indictment against McCray, charging him in Count Four with obstruction of Section 1591(d) as a result of contact between him and his victim from August 2015 through September 2015, and in Count Five with obstruction of Section 1591(d) as a result of contact with his victim in February 2016.

         McCray seeks to suppress the fruits of the search of a vehicle he was operating at the time of his November 12, 2014, arrest. The Government challenges his standing to contest the seizure and search of the vehicle.

         1. Suppression Standing[2]

         The vehicle, a red 2013 Nissan Altima (the “Nissan”), was rented from Hertz by Amanda Freeman, McCray's fiancée and the mother of his child. (T9-10).[3] Freeman rented the Nissan, on a week-to-week basis, three weeks before McCray's arrest; only her name was on the rental contract, and she used the car to go to and from work. (T10-11, 14, 17, 22). She paid for the vehicle and personally renewed the term of the rental period, though the Government suggests that the victim in this case, known by the initials “A.B., ” may have renewed it on Freeman's behalf on at least one occasion. (T15, 23). Since May 2014, Freeman rented other vehicles that she let McCray drive. (T30). Though McCray did not contribute any money to Freeman to rent the Nissan, he had in the past given her some money towards the rental of other vehicles. (T31). He also contributed money to Freeman when they lived together for general living expenses. (T33).[4]When Freeman let McCray use the rental car, he dropped her off at her work and dropped their daughter off at a babysitter's. (T17-18). Freeman knew that McCray drove the Nissan from Nashville, Tennessee, where they lived, to Atlanta, and that he had possession of the car on November 12, 2014. (T11-12, 32). When McCray had the car during this trip, Freeman's friends helped her get to work and helped her get her daughter to the babysitter's. (T18).

         At the time she initially rented the Nissan, Freeman did not tell Hertz that another person would be driving the vehicle because she could not afford the increased cost. (T.18, 19). She testified that, at the time of the rental, she told Hertz only she was going to drive the car.[5] (T18, 19). After McCray's arrest, Freeman contacted Hertz to tell them about a second driver. Hertz charged her for two drivers, retroactive to the start of the rental period. (T12-13).

         Freeman testified that, until McCray's mid-November trip to Atlanta, Freeman allowed McCray to use the car locally to look for a job. (T20). She believes he used it on five or six occasions. (T20). When the vehicle was seized, McCray had possessed the vehicle for two days and was scheduled to return it to Freeman in Nashville by 2:00 p.m. on November 12, 2014, -the day that he was arrested-for her to use to get to work. (T23, 26). When the vehicle was not returned by November 12, 2014, Freeman did not go to work and did not take her daughter to daycare. (T26).

         2. McCray's Arrest, and the Seizure and Search of the Nissan

         The investigation in this case began as a result of a report of suspicious people at an address in Tucker, Georgia in Gwinnett County. (T37-38; Govt. Ex. 1). Gwinnett County Police Department (“GCPD”) officers responded to the Tucker location on October 26, 2014, and made contact with “A.B.” McCray and Alfredo Lopez-Monzon were also at the Tucker address. (T39; Govt. Ex. 1). A.B. at first claimed her name was “Amanda Freeman, ” but eventually told the investigating officers her real name. She also told the investigators that Lopez had placed a pillow over her face and attempted to rape her. The officer suspected that McCray was A.B.'s pimp. (T39-40; Govt. Ex. 1).[6] The investigation revealed that McCray had brought A.B. to the location and was waiting for her to exit the house so that they could leave together. (T40).

         The GCPD's investigation revealed that A.B. was a juvenile runaway from Bibb County, Georgia, and that she was a ward of the state living in foster care in Coweta County, Georgia.[7] From Tucker, Georgia, A.B. was returned to her foster home in Coweta County. She quickly ran away from that residence. When she did, on October 27, 2014, Coweta County Sheriff's Office Criminal Investigator Ryan Foles began his investigation. A.B.'s foster mother told Foles that she saw from her telephone caller identification that A.B. had made a telephone call from the foster home before she disappeared from it. (T41-43). A.B.'s foster mother further told Foles that she had received information that A.B. was being advertised on for prostitution. The date of the advertisement was October 24, 2014. The phone number listed to call had the same 615 area code that A.B. dialed from the foster home. The investigation revealed this was the telephone number used by McCray. (T46-47; Govt. Ex. 3).

         Foles reviewed A.B.'s Facebook page and saw a reference to Jasmine Dillard. A.B.'s foster mother knew Dillard, and Foles asked the foster mother to call Dillard. During the call, Dillard reported that A.B. had run away from her foster home and may be in the company of “Will.” The telephone number that Dillard provided for “Will” was the same telephone number listed in the ad. (T48).

         On November 3, 2014, A.B. was found in DeKalb County. (T48). Foles interviewed her, and she told him that she was taken by “Will” to Tennessee for prostitution. (T48; Govt. Ex. 4). A.B. told Foles that she had met McCray weeks before the interview and that she ended up in an apartment with him one night, where they discussed that she would be a prostitute. She told Foles that McCray threatened violence to force her into prostitution. (T49-50). She stated that she and McCray traveled around Atlanta to various locations where she was prostituted, which she called “doing plays.” After being prostituted, she stated that McCray raped her in an apartment in DeKalb County. She said they traveled around Atlanta in a red Nissan.

         A.B. explained she initially ran away from her foster home in Coweta County, and that she used the utility bill from that location to tell McCray where to pick her up. She already had memorized McCray's phone number. After he picked her up, they went to an Atlanta nightclub where she used Freeman's identification to buy drinks. They then drove to Tennessee for about a week, where she performed three acts of prostitution. (T50-51). A.B. reported that she used Freeman's name and her identification to rent cars for McCray. (T154). A.B. stated that she got sick while in Tennessee and wanted to go home, but McCray wanted to take her to Miami or New Orleans for prostitution. When he dropped her off at a DeKalb County apartment complex, she called her mother. A.B. was apprehended on a runaway juvenile warrant. (T50-51).

         Foles searched the ads in the Nashville, Tennessee, area, and found an ad almost identical to the one containing A.B.'s photograph that had run in the Atlanta edition, except for the telephone number. (T52-53). Foles conducted a computer search and located other escort ads tied to the telephone number in the Nashville ad. (T53). He found a YouTube account linked to the telephone number on which “Skrill Will” rap music videos were posted. Foles had a copy of McCray's driver's license photo, and was able to identify “Skrill Will” as McCray. (T54). On November 7, 2014, Foles applied for and was issued an arrest warrant charging McCray with violating O.C.G.A. § 16-15-46, trafficking persons for sexual servitude. (T54; Govt. Ex. 5).

         During Foles's investigation, A.B. identified various addresses associated with McCray, including a unit at the Clifton Glen Apartments in Stone Mountain, Georgia (504 Three Oaks Bend, Apt. 4), where she alleged that McCray raped her. Police also received information that the red Nissan was observed at that apartment complex. (T55-56, 151-52).[8] Coweta County Deputy Sheriffs could make arrests in DeKalb County, but Foles decided to enlist the DeKalb County Police Department to help him locate and arrest McCray. Foles was concerned that there were more people involved than just McCray, and because A.B. had reported that she was raped in DeKalb County it made sense to ask DeKalb police for help. (T56, 77, 99, 149).[9] Officers obtained a search warrant for the Clifton Glen apartment unit. (See T84). Officers also applied for a search warrant for the red Nissan, but the DeKalb County magistrate judge denied the application. (T102, 106, 107-08; Govt. Ex. 8).

         Shortly after police roll call on November 12, 2014, DeKalb Police Officer Grier located the red Nissan with New York license plates at the Clifton Glen Apartments in DeKalb County. (T78). DeKalb County police, including a SWAT unit, went to the complex and set up a perimeter around the apartment and the red Nissan parked in front of the apartment. (T80, 100, 101, 129). The police knocked on the door to Apartment 4 but no one answered. (T101). A detective saw someone peeking out the window. (T101). The police texted McCray that they were outside and that he should surrender. McCray initially responded that he was not present at the apartment but at a studio in downtown Atlanta. (T85- 86). A resident at the complex stated that McCray was present and, having seen someone peeking out of the window, police executed the search warrant issued for the apartment. (T80, 86-87, 101; Govt. Ex. 8). McCray was not found inside, but later was found hiding inside a utility closet in the breezeway right outside the apartment, and he was arrested. (T81, 86, 103-104). McCray was searched incident to his arrest, and his wallet and other items were seized. (T88-89; Govt. Ex. 11). McCray and these seized items were turned over to Coweta County authorities. (T90).

         When McCray was arrested, the red Nissan was parked in front of the apartment, about twenty yards away, and inside the scene perimeter set up by the police. Looking in the car window, investigators saw male and female clothing in the backseat, making it appear that people were living out of the car. They also saw thumb drives, a cell phone, and the GPS device supplied by the rental car company. (T59- 60, 130-31, 133-35, 155; Govt. Exs. 20, 21). Law enforcement already knew the Nissan was a rental car, that it was the same car that was at the residence when the Gwinnett County officials first encountered A.B. and McCray. (T154). A Coweta County Deputy Sheriff sealed the vehicle with tamper-proof evidence tape. (T131, 138). The vehicle was seized by Coweta County law enforcement and taken to Coweta County.[10] (T143). The vehicle was placed in a secure lot in Coweta County and photographed. During the impoundment process, a box of condoms was observed in plain view inside the vehicle. (T136; Govt. Exs. 25, 26). Search warrants were sought and obtained from a Coweta County judge for the vehicle and for laptop computers and cell phones in the vehicle. (Govt. Exs. 9.[11] 10; T59-60, 70, 81-82, 104, 110; Def. Ex. 1). The Coweta County judge who issued the search warrant for the car was not told that a DeKalb County judge refused to issue the search warrant for the red Nissan when the warrant for McCray's arrest was requested and issued. The DeKalb judge did not believe there was at that time sufficient probable cause to issue the warrant.

         Following his arrest, McCray insisted on speaking to DeKalb Police Department Sergeant Torrey Kennedy. In response to his request, McCray was transported to DeKalb County Police headquarters. (T92). There, he was placed in an interview room and interviewed. The interview was audio- and video-recorded. (T93; Govt. Exs. 18, 19). At the interview, Sgt. Kennedy gave McCray a bottle of water. (T93). Kennedy identified himself, and was not armed. The interview lasted less than two hours. (T94; Govt. Exs. 18, 19). During the was rented by Freeman, and that it interview, McCray was lucid and did not appear to be under the influence of alcohol or drugs. Kennedy did not make any promises or threats to McCray. (T94). He read McCray his Miranda rights from a preprinted form. (T95; Govt. Ex. 17). McCray initialed each right read, waived each one orally and in writing, and signed the waiver form. (T96-97; Govt. Ex. 17). McCray stated that he could read, that he completed the twelfth grade, and that he was not under the influence of drugs or alcohol. (T97; see also Govt. Exs. 18, 19). During questioning, McCray did not ask for a lawyer, did not refuse to answer questions, and did not ask the questioning to stop. (T98-99).[12]

         3. Double Jeopardy Claim

         On June 2, 2015, McCray was indicted on charges of conspiracy, sex trafficking of a minor, and transportation of a minor for prostitution [1]. On September 21, 2015, McCray, who was detained pending trial, was ordered by the Magistrate Judge not to have further contact with A.B. The Court ordered McCray as follows:

I will order you not to have any contact, direct or indirect, with any witness or victim in this case. Direct contact means your having telephone calls or physical or voice communication with those persons or electronic communications. And indirect means you are causing someone else to have contact with victims or witnesses. . . . I will also prohibit you from having any three-way calling in violation of both this order and the rules of any facility that you are in.

([23] at 6-7).

         On April 28, 2016, the grand jury returned the first superseding indictment against McCray, charging him with obstruction in violation of Section 1591(d) as a result of contact between him and A.B. between August 2015 and February 2016, after he was ordered not to have contact with victims. On May 12, 2016, the Government filed a motion for a hearing on McCray's contempt of the Court's September 21, 2015, order and to request modification of pretrial detention conditions. ([53]). The Government's motion requesting a finding of contempt provided:

In February 2016, the FBI learned that McCray had once again contacted A.B. from jail using a three-way call feature. The FBI conducted some investigation and eventually discovered that on February 12, 2016, McCray used another Deyton detainee's PIN to make a three-way call to A.B.'s new cell phone number. [] In that call, McCray asked A.B. whether she planned to come to court to testify at McCray's trial, and he advised her that she should “tell them the truth.” [] McCray then conveyed to A.B. what he meant by “the truth”:
So, I don't know man, you just need to tell them the truth and be real man like, man I, you know we went, I rolled with him in Tennessee because the car and and [sic] I had and I had nothing and even, even the pictures or whatever is posted but I didn't even see nobody and nothing really happened.
McCray further attempted to influence A.B.'s testimony by encouraging her not to come to court, albeit through veiled references. [ ] (“I am pretty sure they are going to try and make it go to court, I don't know, I mean I don't know if it would be better if you don't or don't, I don't know what you think?”) But later in the conversation McCray made his point clear by instructing A.B. to avoid the FBI and the prosecutors: “Just, just, just keep going on the low though you know what I mean?” [] McCray closed the conversation with A.B. by suggesting that he would write to her at her address, and by referencing a “bootleg” message he had previously sent to A.B .....

([53] at 5-7 (citations to exhibits omitted)). After setting forth Count Four of the first superseding indictment, the Government then wrote:

Shortly after the return of the superseding indictment, the undersigned AUSA contacted this Court to request a status conference. This Court asked that the government file a motion spelling out the relief requested. ...

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