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United States v. Acosta

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

December 19, 2017

UNITED STATES OF AMERICA,
v.
BRIAN HERNANDEZ ACOSTA, Defendant.

          NON-FINAL REPORT AND RECOMMENDATION

          WALTER E. JOHNSON UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on defendant Brian Hernandez Acosta's Motion to Suppress Evidence [50] and Motion to Suppress Statements [51]. On September 13, 2017, the Court conducted an evidentiary hearing [77] regarding these Motions, which has been transcribed [82] (hereafter “Tr.”). The parties have also briefed the issues raised. (See Gov't Br. [90]; Def.'s Resp. [100]; Gov't Reply [134].) For the reasons explained below, the undersigned RECOMMENDS that both Motions be DENIED.

         I. THE INDICTMENT

         On April 11, 2017, a grand jury in the Northern District of Georgia returned an eight-count Indictment [1] against Brian Hernandez Acosta, Nilageo Alvarez Acosta, and Jaime Adam Riano, charging conspiracy to commit sex trafficking of a minor, in violation of 18 U.S.C. § 1594(c), sex trafficking of a minor, in violation of 18 U.S.C. § 1591, and transportation of a minor for prostitution, in violation of 18 U.S.C. § 2423(a). The Indictment charges Brian Hernandez Acosta (“Defendant”) in all eight counts. The Indictment also contains a forfeiture provision.[1]

         II. STATEMENT OF FACTS

         A. Events of December 19

         On December 19, 2016, Detective Aberhoff of the Miami Dade Police Department contacted the Dalton Police Department regarding A.M., a sixteen-year-old girl who had been missing for approximately three months. (Tr. 8, 47.)[2]She spoke to Detective Aaron Simpson of the Dalton Police Department, who is also assigned to the FBI's Conasauga Safe Streets Task Force. (Id. at 6, 7.) Detective Aberhoff conveyed to Detective Simpson that during the course of the search for A.M., she had detected activity on Facebook by A.M. (under an alias) and had served subpoenas on Facebook in an effort to determine A.M.'s location. (Id. at 8-9.) A review of A.M.'s Facebook activity log showed IP addresses associated with her Facebook page. (Id. at 9.) A review of those IP addresses pointed to a cell phone registered to T-Mobile, which detectives then subpoenaed. (Id.) A review of T-Mobile's subpoena responses indicated that Defendant was the account holder for the device that A.M. had used to log into her Facebook account. (Id. at 9, 77.)

         Detective Aberhoff gave Detective Simpson the address linked to Defendant's T-Mobile account in Dalton, as well as two other Dalton area addresses, and asked him to check them out to see if he could locate A.M. (Tr. 9-10.)[3] Detective Simpson looked up Defendant in the Dalton Police Department's report system to corroborate the addresses, examined Defendant's Facebook page to identify him, obtained a copy of Defendant's driver's license, and obtained a picture of A.M. from Detective Aberhoff. (Id. at 10.)

         Detective Simpson, accompanied by Detective Tucker, traveled first to 2410 Scott Drive, arriving there about 2:00 p.m. (Tr. 10.) They encountered a woman in a basement-type apartment and showed her a picture of Defendant. (Id. at 11.) This woman recognized Defendant, but reported that he was not there and did not live there. (Id.) The detectives then traveled to 496 Horseshoe Way, which was an apartment complex called Dawnville Meadows. (Id.) The detectives made contact with the apartment complex manager, who confirmed that Defendant lived there in unit J-204 and described his vehicle. (Id. at 11, 64.) The detectives also showed A.M.'s photograph to a maintenance worker for the complex, who remembered that he had seen her crying behind a dumpster close to Defendant's apartment only a couple weeks earlier. (Id.) When detectives knocked on the door of unit J-204, no one answered. (Id. at 12.)

         While still at the complex, Detective Simpson received a telephone call from another Dalton Police Department detective, who advised that Defendant had called the Department wanting to know why the police were looking for him. (Tr. 12.) Detective Simpson asked that detective to obtain contact information from Defendant and he (Simpson) would call him back. (Id.) When Detective Simpson arrived back at the station, the found a note from that detective listing three callback telephone numbers for Defendant. (Id. at 12-13, 49.) One of those numbers was for Defendant's personal cell phone (706-218-0655). (Id. at 13-14, 48-49, 73.)

         At about 4:00 p.m. on December 19, Detective Simpson made a recorded call to Defendant's personal cell phone. (Tr. 13.) Defendant answered and Detective Simpson explained that he was looking for a missing sixteen-year-old girl from Miami known as A.M., and that he had information indicating that Defendant knew where she was or where she had been, and that Defendant had been associated with her. (Id.) Detective Simpson asked Defendant directly where A.M. was and how he could find her to get her home before Christmas. (Id.) Defendant denied knowing A.M. (Id. at 14.) Defendant further claimed that he was in Tampa, Florida until January 18, 2017, but he would contact Detective Simpson if he had further information. (Id. at 14, 41.) Defendant never called Detective Simpson back. (Id. at 14.) Moreover, as discussed below, Defendant was actually in Dalton, not Tampa. (Id. at 41.)

         B. Events of December 28

         On or about December 28, 2016, Detective Aberhoff contacted the Dalton Police Department and advised that she had located A.M.'s photograph in an advertisement posted in the escort services section of a website called www.Backpage.com. (Tr. 15-16.) It appeared that A.M. was in an advertisement for prostitution services; thus, the Detectives became concerned that a missing person case was turning into a sex trafficking case for a minor who needed to be found and rescued. (Id. at 16-17.)

         Also on December 28, 2016, law enforcement officers attempted to conduct an operation designed to recover A.M. and any other minors being trafficked for commercial sex. (Tr. 17, 47-48.) Attempts to contact the telephone number listed in the advertisement with A.M. (706-463-8899) were unsuccessful. (Id. at 17-18, 48, 71.)

         C. Events of December 29

         1. The Undercover Operation

         On December 29, 2016, Detective Simpson, acting in an undercover capacity, sent text messages and placed calls to (706) 463-8899, the number on the advertisement featuring A.M., in an attempt to meet (and rescue) A.M. at a Dalton hotel room (located at 1507 N. Tibbs Road) under the guise of requesting escort services. (Tr. 18-19, 42.) Between 2:00 and 3:00 p.m., Detective Simpson received a response from someone who called herself “Bianca, ” later identified as minor victim L.H. (Id. at 19, 82.) Detective Simpson asked for “Rachel, ” A.M.'s Backpage identity, but L.H. advised that A.M. was not available but she was. (Id. at 19.) Detective Simpson asked L.H. if she could do an “outcall.” (Id.)[4] L.H. replied that she could, that she could meet Detective Simpson within thirty minutes, and that her rate was $150 for one-half hour. (Id. at 19, 42, 63-64, 82.) Detective Simpson then provided L.H. both the address and hotel room number. (Id. at 20, 82.)

         Sometime before 3:00 p.m., a surveillance unit providing support near the designated hotel observed a car enter a nearby parking lot and drive recklessly. (Tr. 20, 47, 82.) When law enforcements officers stopped the vehicle for reckless driving, they encountered L.H. in the passenger seat and defendant Nilageo Alvarez Acosta in the driver's seat. (Id. at 20.) Because defendant Alvarez Acosta had the same last name as Defendant, and because defendant Alvarez Acosta had a girl in his vehicle, Detective Simpson believed that officers had stopped the vehicle transporting the girl for an outcall. (Id.) For verification, Detective Simpson called the same number that he had used to make contact with “Bianca, ” and a phone in the possession of defendant Alvarez Acosta and L.H. rang. (Id. at 21.)

         GBI Agent Rene Green and Detective Tucker interviewed L.H. on the scene beginning at approximately 3:00 p.m., and relayed what they learned to Detective Simpson. (Tr. 21, 74-75.) During the interview, L.H. advised that Defendant was prostituting her; that Defendant knew she was a 17-year-old high school student; that defendant Alvarez Acosta had driven her to the hotel for the purpose of commercial sex; and that A.M. looked familiar to her. (Id. at 21-22.) L.H. also explained that defendant Alvarez Acosta and Defendant are brothers, and conveyed that Defendant had been calling defendant Alvarez Acosta's cell phone repeatedly during the traffic stop. (Id. at 22.) L.H. added that Defendant ran a prostitution operation out of his apartment located at 496 Horseshoe Way, J-204. (Id.) Finally, L.H. relayed that Defendant used his personal cell phone to take pictures of her and other girls and then used that cell phone to post those pictures on Backpage. (Id. at 22, 72-74.)

         2. Events at the Apartment Complex

         Based on the initial information obtained in the interview of L.H., Detective Simpson, FBI Special Agent Susan Scott, and other law enforcement officers traveled to the Dawnville Meadows Apartments on December 29 to set up surveillance. (Tr. 22-23, 47-48.) While waiting there from approximately 3:00 to 4:00 p.m., Detective Simpson received periodic updates from Detective Tucker about his continuing interview with L.H. (Id. at 23, 75.)

         At about 4:00 p.m., as Detective Simpson and Agent Scott sat in his vehicle, Defendant, accompanied by a male passenger, parked in the adjacent space, exited his vehicle, and started running toward his apartment. (Tr. 23-26, 52, 79.) As Detective Simpson exited his vehicle, Defendant suddenly turned around and ran back toward his car. (Id. at 24, 52.) Detective Simpson, unsure whether Defendant had noticed the surveillance units and might be trying to leave, showed Defendant his badge, identified himself as law enforcement, informed Defendant that they needed to talk, and directed him to ...


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