NORMA L. SHAPIRO, J.
Amos Singleton (“Singleton”) was convicted by a jury on four counts: (1) conspiracy to commit robbery which interferes with interstate commerce, in violation of 18 U.S.C. § 1951(a); (2) robbery which interferes with interstate commerce, in violation of 18 U.S.C. § 1951(a); (3) using and carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1); and (4) convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
Singleton filed a timely post-trial motion for judgment of acquittal under Fed.R.Crim.P. 29(c)(1) or, in the alternative, for a new trial under Fed.R.Crim.P. 33(b)(2), and/or for an arrest of judgment under Fed.R.Crim.P. 34(a)(1); he filed a memorandum of law in support of his motion after receipt of the trial transcripts. The court will deny the motions for acquittal on Counts I – III because the government offered sufficient evidence at trial for a reasonable jury to convict Singleton of the charges against him. The court will deny the motions for a new trial because the court did not err when it denied Singleton’s pre-trial motions to suppress, and the government’s comments during summation did not unfairly prejudice him. The court will deny the motion to arrest judgment because the indictment was sufficiently clear to charge Singleton appropriately as to both 18 U.S.C. § 1951 (a) and 18 U.S.C. § 924(c)(1)(a).
On November 1, 2010, shortly after 4:00 p.m., Barbara Jablokov (“Jablokov”) was shot and robbed while working as the manager of the Walnut Lane Apartment complex (“Walnut Lane”) in Philadelphia. On the date of the robbery, co-defendant Corey Pasley (“Pasley”), employed as an armed security guard at Walnut Lane, arrived an hour early for his shift. Pasley and Jablokov were conversing in the front office when Pasley received a phone call and excused himself; after his return moments later, Pasley opened the front door for Singleton who entered the office brandishing a handgun. Singleton had a mask around his neck but nothing covering his face.
Singleton then approached Jablokov at her desk in a manner preventing her from using the office panic button. He placed the gun against her face and moved her into the rear office. Pasley followed behind.
Once in the back office, Singleton fired one round into Jablokov’s right cheek; she suffered extensive damage and severe bleeding. Jablokov, ordered to hand over the keys to the locked safe, dumped the contents of her purse on the floor. While Singleton searched for the keys, Jablokov reached for her own handgun and attempted to shoot him. Singleton wrestled the gun away from Jablokov before emptying the safe.
Jablokov attempted to escape from the office but was blocked at the door by Pasley lying on the floor near the exit. Pasley told Jablokov that she could not leave and grabbed her leg. Jablokov kicked Pasley in the face and escaped. Once outside, Jablokov told those assisting her that the security guard had been involved in the robbery.
The police found Pasely at Walnut Lane with blood on his hands. Taken to the hospital, he was examined and found to have no physical injuries. Following his discharge, Pasley was detained by the police; his shoes, sweatshirt, and cellular telephone (“cell phone”) were seized.
The next day, the police determined Pasley’s cell phone had been called by the number (267) 6220- 0709 (“the 0709 number”) immediately before the robbery. The police recovered the Metro PCS telephone records for the 0709 number, assigned to an individual named “Aziz Mahadi.” Pasley had been in contact with the number multiple times on the date of the robbery. The person using the 0709 number also placed several calls to the Pennsylvania Department of Public Welfare (DPW) office on or around the day of the robbery. The police, contacting the DPW, learned that the 0709 number was associated with Singleton.
On November 5, 2010, the Philadelphia Police Department arrested Singleton under a valid arrest warrant for an unrelated robbery. When arrested, Singleton identified himself as “Aziz Hankerson.” The arresting officers recovered a Kyocera Metro PCS cell phone from Singleton’s pocket. The police later returned to the apartment building with a valid search warrant and seized masks, latex gloves, and Jablokov’s handgun.
At trial, FBI Special Agent William Shute testified as an expert witness in the area of cell site analysis. He established that the cell phone recovered from Singleton when he was arrested was located within a few blocks of Walnut Lane moments before the robbery.
Defendant moved to suppress the cell phone records of Aziz Mahadi, information recovered from DPW, physical evidence recovered from his apartment, and Jablokov’s second photo array and in-court identifications. The court, after hearings on the suppression motions, denied them because: (1) defendant had no expectation of privacy in cell phone records not in his legal name and registered to a fictitious address; (2) the phone records were acquired pursuant to a valid search warrant; (3) defendant had no privilege in the information from the DPW; (4) the physical evidence was seized from Singleton’s apartment pursuant to a valid search warrant and/or incident to a valid arrest; and (5) Jablokov’s second photo array identification and in-court identification were reliable.
A. Motion for Acquittal
Federal Rule of Criminal Procedure 29 provides that, “the court on the defendant’s motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Singleton bears a heavy burden to show insufficiency of the evidence; the court must “review the record in the light most favorable to the prosecution to determine whether any rational trier of fact could have found proof of guilt beyond a reasonable doubt based on the available evidence.” United States v. Smith, 294 F.3d 473, 476 (3d Cir. 2002). The court must “draw all reasonable inferences in favor of the jury’s verdict, ” and should only find insufficient evidence to sustain a conviction when the prosecution’s failure to prove its case is clear. Id. at 476-77.
Singleton disputes there was sufficient evidence at trial from which a reasonable jury could conclude beyond a reasonable doubt that the defendant reached an agreement with Corey Pasley to rob Walnut Lane. To sustain a conviction for conspiracy, the government much show beyond a reasonable doubt that Singleton and Pasley had “(1) a shared unity of purpose, (2) an intent to achieve a common goal, and (3) an agreement to work together toward the goal.” United States v. Perez, 280 F.3d 318, 342 (3d Cir.2002). Although each element of a criminal conspiracy must be proven beyond a reasonable doubt, each may be proven entirely by circumstantial evidence. United States v. McGlory, 968 F.2d 309, 321 (3d Cir.1992).
Barbara Jablokov testified that on the afternoon of the robbery, Pasley arrived unusually early for work. He opened the door to the front office to allow Singleton to enter, stepped aside when Singleton entered, followed behind Singleton for much of the robbery, never made any efforts to prevent the robbery or assist Jablokov, and attempted to block Jablokov from escaping after she was shot. Doc. no. 180, Tr. at 11:3 – 7; 12:22 – 20:24. Pasley was one of the few individuals with knowledge of the location of the office emergency security button, security cameras, and safe; Singleton appeared to act with knowledge of these at the time of the robbery. Id. at 8:8 – 9: 5. Unlike Jablokov, Pasley escaped the robbery unharmed.
Telephones registered to subscribers residing at the addresses of Singleton and Pasley exchanged six calls on the day of the robbery, including one minutes before the robbery and approximately the time Pasley excused himself from Jablokov’s office to answer his phone. Doc. no. 183, Tr. at 23:13 – 25: 14; 64:16. Singleton’s telephone was within a few blocks of the Walnut Lane Apartments at that time. Id. at 48:19 – 49:8. A reasonable jury could have found from the circumstantial evidence that Singleton and Pasley shared a unity of purpose, had intent to achieve the common goal of robbery, and were in agreement to work together toward that goal. The evidence at trial, viewed in the ...