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United States v. Jacobson

United States District Court, E.D. New York

March 13, 2014

UNITED STATES OF AMERICA,
v.
ERIC JACOBSON, Defendant

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[Copyrighted Material Omitted]

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For United States: Catherine M. Mirabile, Lara Treinis Gatz, Assistant United States Attorneys, Loretta E. Lynch, United States Attorney, Eastern District of New York, Brooklyn, New York.

For Defendant: Bruce A. Barket, Barket Marion Epstein & Kearon LLP, Garden City, New York.

OPINION

JOSEPH F. BIANCO, United States District Judge.

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MEMORANDUM AND ORDER

Joseph F. Bianco, District Judge:

On July 3, 2012, a grand jury returned an indictment charging Eric Jacobson (" Jacobson" or " defendant" ) with one count of conspiracy to distribute a controlled substance (oxycodone) in violation of 21 U.S.C. § § 846, and five counts of distribution of a controlled substance (oxycodone) in violation of 21 U.S.C. § 841(a)(1). More recently, on February 12, 2014, a grand jury returned a superseding indictment charging defendant with one count of conspiracy to distribute a controlled substance and 261 counts of distribution of a controlled substance.

On December 9, 2013, defendant moved to suppress evidence seized from his medical office on December 1, 2011 and June 5, 2012, arguing that the warrants authorizing the seizures violated the particularity requirement of the Fourth Amendment, and that the search warrants were not promptly returned to the Court, in violation of Federal Rule of Criminal Procedure 41. Defendant also moved to suppress incriminating statements he made to a federal agent while in custody on June 22, 2012. The government opposed the motion to suppress defendant's statements on January 16, 2014, and defendant replied on January 30, 2014. The government opposed the motion to suppress evidence on January 30, 2014, and defendant replied on February 10, 2014. The Court conducted an evidentiary hearing on defendant's motion to suppress his statements on February 28, 2014.

For the reasons that follow, the motions to suppress are denied. First, the Court concludes that the two warrants authorizing the seizure of evidence from defendant's office were sufficiently particular because they adequately (1) identified the specific offenses for which law enforcement established probable cause, (2) described the place to be searched, and (3) specified the items to be seized by their relation to designated crimes. Contrary to defendant's position, neither warrant contained an impermissible catch-all provision authorizing the search and seizure of electronic data without limitation. Moreover, under the circumstances of this case, both warrants were sufficiently particular even though they did not contain either a temporal limitation on the items to be seized or a specific list of patient files to be seized. In addition, even assuming arguendo that the warrants are invalid, the evidence seized pursuant to those warrants would be admissible under the good faith exception to the exclusionary rule. Finally, concerning defendant's Rule 41 claim, defendant has demonstrated neither prejudice from the government's failure to promptly return the search warrants to the Court, nor evidence of the government's intentional and deliberate disregard of Rule 41. Thus, defendant is not entitled to suppression of the evidence seized pursuant to the two warrants. Second, with respect to the motion to suppress defendant's statements, defendant asserts that his incriminating statements were the product of custodial interrogation conducted in the absence of Miranda warnings. However, having conducted a full evidentiary hearing (including an evaluation of the demeanor of the testifying witness), the Court finds defendant's version of events in his affidavit to be wholly incredible and, instead, fully credits the version of events described by the law enforcement agent who testified at the hearing. Based on the evidence adduced at the suppression hearing, the Court finds that defendant volunteered the incriminating statements he seeks to suppress. In other words, the statements at issue were not the product of " interrogation," and, accordingly, the statements are admissible

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even though law enforcement had not advised defendant of his Miranda warnings on the date the statements were made.

I. Motion to Suppress Evidence Seized Pursuant to Search Warrants

Defendant contends that all evidence seized pursuant to two search warrants must be suppressed because those search warrants lacked the particularity required by the Fourth Amendment. In addition, defendant argues for suppression on the grounds that the agents who executed those warrants did not promptly return the warrants to the Court, in violation of Federal Rule of Criminal Procedure 41(f)(1)(D). For the following reasons, defendant's motion to suppress the evidence seized during the search is denied.

A. The Search Warrants

1. 2011 Search Warrant

On November 30, 2011, Magistrate Judge Arlene R. Lindsay signed a warrant to search defendant's medical office at 277 Northern Boulevard, Suite 309, Great Neck, New York (the " 2011 Warrant" ). The government's application for a warrant was supported by the affidavit of Drug Enforcement Agency (" DEA" ) Special Agent Sabrina Conwell, although the 2011 Warrant itself did not incorporate the affidavit. The 2011 Warrant stated that defendant's medical office was believed to conceal the items enumerated in " Attachment A," which authorized the seizure of the following items:

1. Any and all records, data and correspondence constituting evidence, fruits and instrumentalities of violations of Title 18, United States Code, Sections 1956 and 1957, and Title 21, United States Code, Section 841(a)(1), in any form wherever that they may be stored or found including, but not limited to:
(a) documents, information or records relating to the prescribing of controlled substances, including but not limited to blank or completed prescriptions, Controlled Substance Information reports and appointment books;
(b) patient records, lists and files and related identifying information for customers who have received prescriptions for controlled substances;
(c) billing and payment records, including but not limited to receipts of payments, checks, checkbooks, credit card records, invoices, shipping documentation, insurance records, ATM records, deposit and withdrawal records, bank statements, tax records, bills, cash receipt books, bookkeeping ledgers for patients/customers who have received prescriptions for controlled substances;
(d) any United States currency which has been paid or given by customers to Dr. Jacobson or any employee or contractor at the SUBJECT OFFICE to secure an appointment or to secure a prescription for a controlled substance;
(e) financial books and records and documents constituting, concerning, or relating to payments made for controlled substance prescriptions;
(f) records concerning use or disposition of cash proceeds obtained for the prescription of controlled substances, including, but not limited to bank account records, credit card records; money market accounts, checking accounts, investment accounts, stock fund accounts, 401K funds, mutual funds, retirement funds, bonds or bond funds;
(g) contracts, agreements, logs, lists or papers affiliated with any medical professional services rendered at the SUBJECT PREMISES;
(h) All records files and resumes of employees, contractors or other medical personnel working for or seeking work at the SUBJECT OFFICE, including,

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but not limited to, any handwritten or computer files listing names addresses, telephone numbers and background information for any and all current and former employees, contractors or other medical personnel working for or seeking work at the SUBJECT PREMISES or for Dr. Jacobson;
(i) documents demonstrating the rental or ownership of SUBJECT OFFICE; and
(j) computers, central processing units, external and internal drives, external and internal digital storage equipment or media, computer software, computerized digital data storage devices, including data stored on hard disks, floppy disks, or CD/DVD Disks, computerized printouts or computer programs, computer or data processing software or data, and any other items which could contain or be used to transmit or store any digital records, documents, and materials described above.

(2011 Warrant, Attachment A ¶ 1.) Paragraph two of Attachment A states that " [a]gents searching for the items described above are authorized to search any computers or digital media at the SUBJECT OFFICE and to copy all data stored on such computer(s) or media in order to extract and examine the above-described information." ( Id. ¶ 2.)

DEA and Internal Revenue Service (" IRS" ) agents executed the 2011 Warrant on December 1, 2011 at 11:30 a.m. (2011 Warrant Return.) Agents recovered patient folders, images of a four gigabyte thumb drive and two computers, a computer, and " misc[ellaneous] documents." ( Id.) The agents left a copy of the warrant and an inventory of items seized with office staff at the reception desk. ( Id. ...


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