United States v. Bella

UNITED STATES OF AMERICA, v. JOSEPH BELLA, Defendant.

Nos. 1:20-CR-00104-RJA-MJR, 1:21-CR-00031-RJA-MJR

United States District Court, W.D. New York

August 27, 2021

REPORT, RECOMMENDATION AND ORDER

MICHAEL J. ROEMER United States Magistrate Judge.

These matters were referred to this Court by the presiding District Judge, the Honorable Richard J. Arcara, pursuant to 28 U.S.C §636(b)(1), to handle all pre-trial matters and to make a recommendation as to all suppression motions. Before the Court are defendant Joseph Bella's motions to suppress evidence, as well as his omnibus discovery demands.^[1] (20-CR-104, Dkt. Nos. 23, 27, 42; 21-CR-31, Dkt. No. 8). Also before the Court are the Government's requests for reciprocal discovery. (20-CR-104, Dkt. Nos. 25, 29, 43; 21-CR-31, Dkt. No. 12).

For the following reasons, it is recommended that defendant's motion to suppress evidence be denied. The Court's decisions as to defendant's omnibus discovery demands and the Government's request for reciprocal discovery are also set forth in detail below.

PROCEDURAL HISTORY AND BACKGROUND

On July 23, 2020, defendant was charged, in a three-count Indictment with the following: (1) maintaining a drug-involved premises at 224 Summer Street, Buffalo for the purposes of manufacturing, distributing, and using marijuana delt9-tetrahydrocannabinol, cannabinol, 3, 4-methylenedioxymethamphetamine (MDMA), psilocybin, cocaine, and lisdexamfetamine, in violation of Title 21, United States Code, Section 856(a)(1), (2) possession of a firearm in furtherance of a drug trafficking crime, in violation of Title 21, United States Code, Section 924(c)(1)(A)(i); and (3) possession of a firearm and ammunition by an unlawful user of controlled substances, in violation of Title 18, United States Code, Sections 922(g)(3) and 924(a)(2) (the “Drug Trafficking Indictment”). (20-CR-104; Dkt. No. 8). This Indictment also includes a forfeiture allegation encompassing a 12-gauge Harrington and Richardson shotgun, ten 12-gauge rounds of Remington ammunition, thirty-three 9mm Luger caliber rounds of ammunition, and forty .223 REM caliber rounds of ammunition. (Id.)

On December 16, 2020, defendant moved to suppress evidence gained pursuant to search warrants, and made various discovery demands. (Id., at Dkt. No. 23). The Government filed a response. (Id., at Dkt. No. 25). On January 11, 2021, the Court held oral argument on the motions, at which time the Government was directed to supply defense counsel with a redacted copy of the search warrant application. Defendant was also given an opportunity to supplement his motions or affidavit of standing. Defendant filed a supplemental motion on February 2, 2021 providing additional support for his motion to suppress, to which the Government responded. (Id., at Dkt. Nos. 27, 29).

On February 25, 2021, a Superseding Indictment was returned, charging defendant with the following offenses: 1) three counts of possession with intent to distribute and distribution of cocaine, in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(C); (2) maintaining a drug-involved premises at 224 Summer Street, Buffalo for the purposes of manufacturing, distributing, and using marijuana, delt9-tetrahydrocannabinol, cannabinol, 3, 4-methylenedioxymethamphetamine (MDMA), psilocybin, cocaine, and lisdexamfetamine, in violation of Title 21, United States Code, Section 856(a)(1); (3) possession of a firearm in furtherance of a drug trafficking crime, in violation of Title 21, United States Code, Section 924(c)(1)(A)(i); (4) possession of a firearm and ammunition by an unlawful user of controlled substances, in violation of Title 18, United States Code, Sections 922(g)(3) and 924(a)(2); and (4) two counts of interstate communication threatening to injure a person, in violation of Title 18, United States Code, Section 875(c) (the “Superseding Drug Trafficking Indictment”). (Id., at Dkt. No. 30). The Superseding Indictment repeats the forfeiture allegations detailed above. (Id.).

Also on February 25, 2021, defendant was charged by separate Indictment with the following offenses: (1) three counts of wire fraud relative to a scheme and artifice to defraud and mislead a victim into selling COVID-19 tests, in violation of Title 18, United States Code, Sections 1343 and 2; (2) two counts of mail fraud relative to COVID-19 tests, in violation of Title 18, United States Code, Sections 1341 and 2; (3) two counts of wire fraud relative to a scheme and artifice to defraud the Small Business Administration (“SBA”) to obtain funds from the Economic Injury Disaster Loan (“EIDL” Program), in violation of Title 18, United States Code, Sections 1343 and 2; (4) false statements on a loan application relative to obtaining an EIDL, in violation of Title 18, United States Code, Sections 1014 and 2; and (5) money laundering, in violation of Title 18, United States Code, Sections 1957(a) and 2 (the “Fraud Indictment"). (21-CR-31, Dkt. No. 1). This Indictment also includes two forfeiture allegations encompassing monetary sums and bank and investment accounts held in the names of Med-Cor Staffing, Inc. and Tatonka Industries LLC. (Id.).

On May 7, 2021, defendant filed his second omnibus motion based upon the Superseding Drug Trafficking Indictment (20-CR-104, Dkt. No. 42), as well an omnibus motion on the Fraud Indictment (21-CR-31, Dkt. No. 8). The Government filed responses to each. (20-CR-104, Dkt. No. 43; 21-CR-31, Dkt. No. 12). The Court scheduled oral argument as to all pending motions with respect to the Drug Trafficking Indictment and the Fraud Indictment to be held on August 13, 2021. On that date, the parties advised the Court that they wished to rest on their papers and the Court considered the matters submitted.

DISCUSSION

Motion to Suppress Physical Evidence

Defendant moves to suppress physical evidence, and any derivative evidence, that resulted from the search of his residence at 224 Summer Street, Buffalo, New York, his place of business at 155 Summer Street, Buffalo, New York and/or his person on April 23, 2020, and thereafter, on the grounds that the federal search warrants authorizing such searches were not supported by probable cause. (20-CR-104, Dkt. Nos. 23, pgs 22-25, 27, pgs. 2-7, 42, pgs. 23-26; 21-CR-31, Dkt. No. 8 pgs. 23-24). The Court finds no basis to suppress this evidence.^[2]

Defendant submitted an affidavit asserting standing to challenge these searches. (Dkt. No. 23-1). Therein, defendant affirms that the locations searched were his residence at 224 Summer Street, his place of business at 215 Summer Street, and his vehicle. He asserts that he had a reasonable expectation of privacy in each of those places. The Government does not contest defendant's standing to challenge the search of his home or vehicle but maintains that defendant has not shown standing to challenge the search at 155 Summer Street. The Government argues that defendant's mere allegation that 155 Summer Street was his place of business is insufficient to demonstrate that he had a reasonable expectation of privacy there. See Rakas v. Illinois, 439 U.S. 128, 134 (1978) (holding that the proponent of a motion to suppress bears the burden of establishing that his own Fourth Amendment rights were violated by the challenged search or seizure); United States v. Osorio, 949 F.2d 38, 40 (2d Cir. 1991) (“The movant must show that he had an expectation of privacy in an invaded place and that the expectation was legitimate, one that society is prepared to recognized as reasonable.”). Here, defendant asserts that he had a reasonable expectation of privacy in 155 Summer Street merely because that is where he Tun[s] his business.” (Dkt. No. 23-1, ¶ 3). It is well established that one has standing to object to a search of his office, as well as of his home, Mancusi v. DeForte, 392 U.S. 364, 369 (1968), but defendant here fails to provide factual details necessary for the Court to evaluate what privacy defendant enjoyed within some or all of the business premises, including to what extent the locations searched were accessible to other persons. Nonetheless, the Court will assume, without holding, that the defendant has established standing in both locations and will address his arguments on the merits.

A search warrant issued by an impartial magistrate is presumptively valid. United States v. Smith, 9 F.3d 1007, 1012 (2d Cir. 1993). Where, as here, the Court is reviewing the probable cause determination of an independent magistrate, it asks solely “whether the issuing judicial officer had a substantial basis for the finding of probable cause.” United States v. Wagner, 989 F.2d 69, 72 (2d Cir. 1993). Doubts regarding the existence of probable cause should be resolved in favor of upholding the search warrant. United States v. Travisano, 724 F.2d 341, 345 (2d Cir. 1983); Illinois v. Gates, 462 U.S. 213, 236 (1983) (deference is to be given to the issuing magistrate).

The searches were executed pursuant to federal search warrants issued for 224 Summer Street and 155 Summer Street on April 22, 2020, and for 37 electronic devices (phones, computers, drives, servers, etc.) on June 10, 2020. The warrant to search the electronic devices was based upon the premises searches that occurred on April 23, 2020 and related to devices seized at those locations. The instant search warrant applications were supported by the affidavits of Special Agents Curtis E. Ryan and Adam P. Tyrna, respectively, of Homeland Security Investigations.

The Court has reviewed the search warrant applications and finds that there was a substantial basis for the probable cause finding in each. Specifically, the Court rejects defendant's arguments that the warrants lack probable cause because they ...