LANCE M. AFRICK, District Judge.
The Court has pending before it a motion
Defendants, Susantha Wijetunge ("Susantha") and Manula Wijetunge ("Manula") (collectively, "the Wijetunges"), are a married couple who own defendant, VJ Discount, Inc., through which they operated a convenience store and check-cashing business in Kenner, Louisiana ("VJ Discount").
On March 6, 2015, a Department of Homeland Security agent signed a sixty-one-page affidavit in support of an application for warrants to search the convenience store and the Wijetunge residence, including the garage, and to seize evidence.
On July 23, 2015, the grand jury returned a thirty-two-count superseding indictment against the Wijetunges, VJ Discount, Inc., and the Property Defendants.
Defendants move to suppress evidence obtained pursuant to the search warrants executed at VJ Discount and at the Wijetunges' home.
"In considering a Fourth Amendment challenge to a seizure conducted pursuant to a search warrant, [the Court] ask[s] first whether the seizure falls within the good-faith exception to the exclusionary rule" based upon good-faith reliance on the warrant. United States v. Davis, 226 F.3d 346, 350-51 (5th Cir. 2000) (citing United States v. Cherna, 184 F.3d 403, 407 (5th Cir. 1999)). "Under the good-faith exception, `evidence obtained by law enforcement officials acting in objectively reasonable good-faith reliance upon a search warrant is admissible in the prosecution's case-in-chief, even though the affidavit on which the warrant was based was insufficient to establish probable cause.'" Id. at 351 (quoting United States v. Shugart, 117 F.3d 838, 843 (5th Cir. 1997)). Only if the Court "conclude[s] that the good-faith exception does not apply" does the Court "proceed to ask whether the magistrate who issued the warrant had a substantial basis for believing there was probable cause for the search." Id. (citing Cherna, 184 F.3d at 407).
"There are four situations in which the Leon good-faith exception does not apply," only one of which defendants directly assert in their motion: "the good-faith exception does not apply when the magistrate issuing the warrant was intentionally or recklessly misled by the affiant on whom he relied." Id. at 351 n.1 (citing Cherna, 184 F.3d at 407).
To obtain a hearing on a motion to suppress, a defendant must make a "substantial preliminary showing" that "(1) the affiant knowingly and intentionally, or with reckless disregard for the truth, made a false statement in the warrant affidavit and (2) the remaining portion of the affidavit is insufficient to support a finding of probable cause." United States v. Arispe, 328 F. App'x 905, 906 (5th Cir. 2009). If the motion to suppress is based on omissions, a defendant must make "`a strong preliminary showing that the affiant excluded critical information from the affidavit with the intent to mislead the magistrate'" and, that if the information had been included, the affidavit would have been insufficient to establish probable cause. Id. at 907 (quoting United States v. Tomblin, 46 F.3d 1369, 1377 (5th Cir. 1995)).
Attempting to attack the affidavit and avoid applicability of the good-faith exception, defendants assert: (1) that the affidavit contains misrepresentations and omissions with respect to the reliability of the identified cooperating defendants; (2) that the affidavit contains misrepresentations of allegedly corroborative recordings; and (3) that without those misrepresentations or omissions, the affidavit does not establish probable cause of the alleged conspiracy to commit money laundering and structuring.
The affidavit sets forth information purportedly obtained from six cooperating defendants.
The affidavit expressly states that cooperating defendants two through six pleaded guilty to charges.
Information bearing on an informant's reliability, such as criminal history or cooperation with the government in exchange for favorable treatment, may be relevant to a determination of probable cause. However, defendants do not cite any cases suggesting that every piece of such information is categorically required to be included in an affidavit in support of an application for a warrant, or that omission of some such information automatically invalidates a warrant.
Defendants generally contend that the aggregate discussion of the cooperating defendants did not "allow the Magistrate Judge to assess their individual reliability."
First, the only arguable affirmative misrepresentation that defendants articulate is the affidavit's reference to cooperating defendant one as a defendant. The government concedes that the individual referred to as cooperating defendant one has not been charged for his alleged role in the conspiracy.
Second, with respect to purported omissions of information relevant to the reliability of the cooperating defendants in general, and cooperating defendant one in particular, the affidavit certainly could have included more information.
The affidavit in support of the search warrant did disclose some information tending to undermine the reliability of the cooperating defendants, including prior false statements to law enforcement as well as the fact that they participated in a criminal conspiracy to obtain fraudulent tax refund checks.
Defendants proffer innocent alternative explanations which allegedly undermine the existence of probable cause. However, defendants have not demonstrated that the agent either deliberately or recklessly misled the U.S. Magistrate Judge. The omitted information allegedly bearing on the cooperating defendants' reliability is not "dispositive" and it does not defeat the showing of probable cause found by the U.S. Magistrate Judge. The Court further concludes that defendants have not made the requisite strong preliminary showing which would entitle them to a hearing as to the alleged omissions and misrepresentations set forth herein.
Defendants also argue that the affidavit misrepresents or mischaracterizes several pieces of surveillance evidence. On two occasions, cooperating defendant one was sent undercover into VJ Discount to cash checks while equipped with audio and video recording equipment.
Defendants contend that the affidavit overstates the degree to which the recordings corroborate cooperating defendant one's statements.
Defendants also raise various other complaints about the inferences suggested in the affidavit.
Generally, they complain that the agent did not give them the benefit of the doubt, "took every opportunity to interpret vague statements in a manner that implied some sort of wrongdoing, and presented the information to the Magistrate Judge as conclusive fact of criminal activity when the evidence was far from it."
Defendants also make arguments under the umbrella of "overbreadth," as they claim that the warrant did not sufficiently particularize the things to be seized. "Overbreadth claims focus on the Fourth Amendment's requirement that warrants `particularly describ[e] the place to be searched, and the persons or things to be seized.'" United States v. Patel, 485 F. App'x 702, 711 n.5 (5th Cir. 2012) (quoting U.S. Const. amend. IV). Defendants' arguments are not persuasive.
The good-faith exception applies to the execution of a warrant that does not sufficiently particularize the things to be searched for and seized unless the warrant was "so defective that an officer would be unreasonable to rely on it." Davis, 226 F.3d at 352. Defendants have failed to make a substantial showing of such an obvious lack of particularity. The warrant in this case is at least as particularized as others that have been approved by the Fifth Circuit; as was the case in Davis, the twenty-two categories of evidence listed in this search warrant "are delineated in as much detail as is practicable for investigating the kind of fraud indicated in this case," and "proof that [defendants] had made money on which [they] owed taxes would require review of broad categories of [their] records." Id. In short, defendants' "overbreadth" argument does not warrant suppression and defendants have failed to establish their entitlement to a hearing as to that issue.
Finally, defendants raise a number of issues related to the execution of the warrant and the items seized.
First, defendants contend that the government used "excessive force and intimidation in executing the warrant in the early morning hours of a family's home."
Second, defendants contend that in executing the search, agents took advantage of an overbroad warrant.
Third, defendants contend that evidence should be suppressed because the government violated Rule 41 of the Federal Rules of Criminal Procedure by not timely or upon request providing them with a complete copy of the warrant for the search of the house or the business.
Rule 41(f)(1)(C) of the Federal Rules of Criminal Procedure states that "[t]he officer executing the warrant must give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken or leave a copy of the warrant and receipt at the place where the officer took the property." However, "neither the Fourth Amendment nor Federal Rule of Criminal Procedure 41" requires that an "an executing officer must present the property owner with a copy of the warrant before conducting his search." United States v. Grubbs, 547 U.S. 90, 98-99 (2006) (emphasis added); see also Groh v. Ramirez, 540 U.S. 551, 562 n.5 (2004) (same). The Supreme Court has also noted the "absence of a constitutional requirement that the warrant be exhibited at the outset of the search, or indeed until the search has ended." Grubbs, 547 U.S. at 99 (internal quotation marks omitted). On the other hand, the Supreme Court has observed that it is an unanswered question "[w]hether it would be unreasonable to refuse a request to furnish the warrant at the outset of the search when . . . an occupant of the premises is present and poses no threat to the officers' safe and effective performance of their mission." Id. (emphasis added).
In the Fifth Circuit, violations of Rule 41(f) "`are essentially ministerial in nature and a motion to suppress should be granted only when the defendant demonstrates legal prejudice or non-compliance with the rule was intentional or in bad faith.'" See United States v. Charles, 883 F.2d 355, 357 (5th Cir. 1989) (quoting United States v. Marx, 635 F.2d 436, 442 (5th Cir. 1981)).
In Marx, an agent obtained a search warrant for a defendant's suitcases, and another agent searched the suitcases after being notified by telephone that the warrant had been issued. See 635 F.2d at 440. The warrant was not present at the search and it was not delivered to the defendant until the next day. See id. at 440-41. The Fifth Circuit affirmed the district court's denial of a motion to suppress, concluding, with respect to the prejudice prong, that (1) "[f]ailure to deliver a copy of the search warrant to the party whose premises were searched until the day after the search does not invalidate a search in the absence of a showing of prejudice," (2) prejudice means that a defendant is "subjected to a search that might not have occurred or would not have been so abrasive had the rule been followed," and (3) that defendants did not meet their "burden of proof in challenging the validity of the execution or service of the search warrant." Id. at 441.
In Charles, "the officers who raided [defendant's] compound received word about the warrant's issuance over the police radio [but] did not have in hand a copy of the warrant to present." 883 F.2d at 357. Relying on Marx, the Fifth Circuit affirmed a denial of a motion to suppress because the defendant had not made a showing of prejudice. See id.
In United States v. Gantt, a Ninth Circuit case, the facts were as follows:
194 F.3d 987, 996 (9th Cir. 1999), overruled in part on other grounds by United States v. W.R. Grace, 526 F.3d 499, 506 (9th Cir. 2008). The district court suppressed the evidence obtained pursuant to the search, and the Ninth Circuit affirmed. First, the Ninth Circuit concluded that "by failing to present Gantt with a complete copy of the warrant at the outset of the search of her apartment," the government violated Rule 41, which it construed to require service at the outset of the search absent "exigent circumstances." Id. at 1000-01.
The Ninth Circuit then noted that "[v]iolations of Rule 41[f] do not usually demand suppression" and that "technical violations . . . require suppression only if there was a deliberate disregard of the rule or if the defendant was prejudiced." Id. at 1005 (quotation marks omitted).
In this case, according to a series of affidavits by defendants and their children, and despite alleged repeated requests to see a copy of the warrant, defendants were not presented with a copy of the search warrant at their home until two to three hours after the search began.
Defendants have alleged that they requested to see copies of the search warrants, which requests were delayed, and that the copies later provided were incomplete because they did not include the attachments. This resembles the situation noted by the Supreme Court in dicta in Groh to be an unanswered question. See 540 U.S. at 562 n.5. Accordingly, the Court finds it appropriate to hold an evidentiary hearing with respect to when and under what circumstances defendants were provided copies of the search warrants, and to decide this portion of the motion to suppress on the basis of a developed factual record. Although the Court will conduct an evidentiary hearing, the parties should not construe this order as an opinion by this Court that defendants' allegations, if accepted by the Court, would warrant suppression.
Defendants assert that the government seized computers, a car title and a personal checkbook belonging to defendants' daughter, Manula's car, and cash beyond the scope of the search warrant. "As a general rule, only items that are described in a search warrant may be seized in accordance with Fourth Amendment concerns." United States v. Waldrop, 404 F.3d 365, 368 (5th Cir. 2005). This motion potentially implicates the plain view doctrine which is an "exception to this general rule" and will be discussed in greater detail below. See id.
First, the warrant authorized search and seizure of "any computer, computer hard drive, or other physical object upon which computer data can be recorded . . . that might contain things otherwise called for by this warrant."
Second, defendants submit an affidavit from their daughter asserting that the government seized the title to the daughter's car and checkbooks for the daughter's personal checking account.
With respect to the car title, the government responded that it seized the car title because agents "reasonably believed that title to a brand new — Mini Cooper in the daughter's name might be evidence of money laundering."
With respect to the daughter's checkbook, the motion is moot because, as discussed at the pretrial conference, the government does not intend to introduce the checkbook as evidence at trial. Third, defendants assert that Manula's car was seized. The Court directed supplemental briefing as to the basis for this seizure as well.
Fourth, defendants assert that cash was seized outside the scope of the warrant.
For the foregoing reasons,
Counts twenty through twenty-two of the superseding indictment charge Susantha, Manula, and VJ Discount with knowingly and willfully failing to file "Reports of Foreign Bank and Financial Accounts," in violation of 31 U.S.C. §§ 5314, 5322(a); 31 C.F.R. § 1010.350, 1010.316(c)-(d); and 18 U.S.C. § 2.
Counts twenty-three through twenty-five of the superseding indictment charge Susantha and Manula with making and subscribing false individual income tax returns, in violation of 26 U.S.C. § 7206(1).
Counts twenty-six through twenty-eight of the superseding indictment charges Manula with making and subscribing false income tax returns for an S corporation, i.e., VJ Discount, Inc., in violation of 26 U.S.C. § 7206(1).
Counts twenty-nine through thirty-one of the superseding indictment charge Susantha with willfully aiding and assisting in the preparation of false income tax returns for an S corporation for VJ Discount, Inc., in violation of 26 U.S.C. § 7206(2).
Count thirty-two charges Susantha and Manula with conspiring to defraud the United States by concealing their true income and assets in connection with a Free Application for Federal Student Aid ("FAFSA"), in violation of 18 U.S.C. § 371.
