United States v. Mubarak

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UNITED STATES OF AMERICA, v. MUJAB MUBARAK, Defendant.

CRIMINAL ACTION No. 20-cr-10300-ADB

United States District Court, D. Massachusetts

July 27, 2022

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS

ALLISON D. BURROUGHS, U.S. DISTRICT JUDGE.

Currently before the Court is Defendant Mujab Mubarak's (“Mubarak”) motion to suppress evidence obtained during the searches of two residences, an apartment in Everett, Massachusetts (the “Everett apartment”) and a house in Lowell, Massachusetts (the “Lowell house”), based on the assertion that the search warrants were not supported by probable cause. [ECF No. 105]. For the reasons set forth below, the motion to suppress is DENIED.

I. BACKGROUND

A. Investigation

The following facts are drawn primarily from the Affidavit of Special Agent Timothy R. Kenny (“Agent Kenny”) submitted in support of the application for the search warrants and are undisputed unless otherwise indicated. See [ECF No. 105-3 (“Kenny Affidavit” or “Affidavit”)].

The Government began investigating the “Mubarak Drug Trafficking Organization” (the “Organization”) in 2017. [Kenny Affidavit ¶¶ 5, 13]. From 2017 to 2020, evidence was obtained primarily using physical surveillance, informants, and phone and financial records. [Id. ¶¶ 2, 5]. The investigation revealed that Mubarak was the leader of the Organization, and that Vito Gray and Abdul Karim Muwakkil assisted him in transporting and distributing large quantities of fentanyl, heroin, and cocaine, and with collecting and laundering the Organization's proceeds. [Id. ¶¶ 13-16]. The Affidavit also asserts that in July 2017 Mubarak shot Gray over an issue related to the loss of drug trafficking proceeds, [id. ¶ 13], although Mubarak disputes that he has been affirmatively identified as the shooter, [ECF No. 105 at 4].

In support of these allegations, Agent Kenny attested that, between June 2017 and January 2018, a cooperating witness (“CW-1”) made approximately 25 controlled purchases of heroin, fentanyl, and cocaine, all of which were arranged by Muwakkil or Gray, and in some instances were bought from Muwakkil or Gray directly. [Kenny Affidavit ¶¶ 17-19]. The Affidavit states that the buys were made “[i]n coordination with” Mubarak even if he was not present for the actual transactions. [Id. ¶ 17]. In conversations with CW-1, Muwakkil referred to Mubarak as “my boss” and “the boss” and the two of them also discussed the operations of the Organization more broadly, including its vast profitability. [Id. ¶¶ 55-58].

Additionally, CW-1 met with Mubarak three times, on August 7, 2017, [Kenny Affidavit ¶ 29], August 11, 2017, [id. ¶¶ 30-341], and November 21, 2017, [id. ¶¶ 61-70]. During these meetings, two of which were recorded, they discussed the Organization, including its drugdealing and money laundering activity, distribution scheme, hierarchy, lucrative profits, quality of drug supply, and how Mubarak secured the drug supply through his own funding. [Id. ¶¶ 2945, 61-70]; see also [ECF No. 109 at 3-4]. Further, Mubarak identified himself as the boss of the Organization, [Kenny Affidavit ¶ 69], and, at the recorded meeting on August 11, 2017,^[1] admitted to shooting Gray, [id. ¶¶ 30-34]. At this same August meeting, Mubarak referenced a “book” or “books,” [id. ¶ 31], which Agent Kenny believed to be ledgers documenting the unlawful activity of the Organization, [id. ¶ 32]. At the November meeting, Mubarak talked about closely “guard[ing]” his drug supply, which Agent Kenny attested indicated that Mubarak “stores his drug supply at a location he feels is secure, such as his residence.” [Id. ¶ 70].^[2]

The Government's investigation continued after 2017, but without further use of the informant or additional drug buys. Instead, investigators employed physical surveillance and focused on Mubarak's finances and phone call records. [Kenny Affidavit ¶¶ 71-105, 114-125]. The financial investigation revealed a pattern of activity, consistent from 2017 to 2020, indicative of the laundering of drug proceeds, including Western Union transactions, suspiciously structured check and cash deposits to bank accounts, extensive airline travel, and purchases of motor vehicles. [Id. ¶¶ 79-105]. Further, Mubarak was never observed traveling to or from a place of employment despite being surveilled on over 50 separate occasions from January 1, 2020 up until the date of the warrant application. [Id. ¶¶ 71, 78]. Although he deposited some checks from an employer, KO Stone, Inc., the Government alleges those checks were fraudulent and the bulk of the deposits into his account were cash consistent with drug proceeds. [Id. ¶¶ 78, 95-101]. Finally, review of Mubarak's phone records from January 1, 2020 to July 5, 2020 showed frequent contact with individuals involved in drug trafficking. [Id. ¶¶ 114-25].

Despite the Government's frequent physical surveillance, there is no evidence that Mubarak was ever observed engaged in any drug transactions.

B. Search Warrants and Related Residences

During the course of the investigation, Mubarak was observed residing at two locations: the Everett apartment (25 Charlton Street, Apartment C-701) and the Lowell house (11 Garden Road). [Kenny Affidavit ¶ 7]. Agent Kenny attested that the Everett apartment was Mubarak's primary residence and that the Lowell house was his secondary residence. [Id.]. On August 5, 2020, the Government sought warrants to search both residences with the Kenny Affidavit forming the basis of each application. [Id. ¶¶ 7-9].

In support of the warrant application for the Everett apartment, Agent Kenny attested that it was his belief that Mubarak primarily resided at the Everett apartment, that he conducted money laundering activity from the residence, and stored evidence of money laundering and drug trafficking there. [Kenny Affidavit ¶¶ 106-09]. Based on surveillance beginning in approximately December 2019, Mubarak slept at this residence most nights, motor vehicles registered to him (a GMC Truck and two motorcycles) were kept in the parking garage of the residence, and leasing documents obtained by law enforcement confirmed that he had leased the apartment for one year on February 28, 2019 and renewed the leased for another year on February 9, 2020. [Id. ¶¶ 72-73, 107]. Additionally, Mubarak made numerous cash deposits at ATMs located in Everett, MA and Malden, MA, less than two miles away from the Everett apartment, which, Agent Kenny concluded, was “consistent with [his] continuing residence and storage of funds and cash at [the Everett Apartment].” [Id. ¶¶ 99, 101]. He further stated that the “pattern of the deposits [was] consistent with [Mubarak] structuring the cash deposits into the accounts to not generate suspicion due to large cash amounts being transacted, and to avoid the requirement of a currency transaction report being filed for transactions in amounts exceeding $10,000.” [Id. ¶ 102].

The Lowell house belonged to Djwan Scott, who the Affidavit describes as “one of [Mubarak's] longtime female associates.” [Kenny Affidavit ¶ 112]. In support of the application for a warrant to search the Lowell house, Agent Kenny attested that Mubarak had slept at this location “most nights” during 2017 through March 2018, based upon his car being parked there overnight, [id. ¶ 111], and investigators additionally observed Mubarak or his GMC truck at this location on at least seven occasions during July 2020, even when the homeowner was not there, [id.]. Based on this information, Agent Kenny believed that Mubarak stored personal belongings and paperwork at the Lowell location. [Id. ¶ 113].

As support for the search of both residences, the Affidavit emphasized Mubarak's November 2017 statement to the effect that he kept the instruments and objects of his drug activity closely “guard[ed],” [Kenny Affidavit ¶ 70], thereby suggesting that such items would be found at his home or habitual residence. Agent Kenny also relied on his experience and knowledge about how drug traffickers operate in concluding where evidence was likely to be found. [Id. ¶ 127]. Agent Kenny attested that he had worked for the FBI since 2014, with most of that experience involving gang and drug investigations, [id. ¶¶ 1, 5, 13], and that he was familiar with the methods of operation employed by drug traffickers, including those involving the distribution, storage, and transportation of narcotics; the collection of proceeds; and, the common ways in which drug traffickers use cell phones in furtherance of their unlawful activities and to thwart law enforcement surveillance, [id. ¶¶ 1-4, 127, 131-138]. In conclusion, Agent Kenny stated that, “[b]ased on []his training and experience, [his] analysis of consensually recorded telephone calls, meetings, and controlled purchases, and drugs seized from coconspirators who have been involved in drug trafficking with [Mubarak] and the co-conspirators, [he] believe[d] that drug proceeds, documents, and other evidence of drug trafficking and money laundering will be found at” both locations, [id. ¶ 128], and that this would specifically include cell phones and other computer equipment with evidence of crimes, [id. ¶ 138].

On August 5, 2020, Magistrate Judge Judith Dein issued two search warrants authorizing the search of both locations. See [ECF Nos. 105-1 (warrant for the Everett apartment); 105-2 (warrant for the Lowell house)]. The warrants identified the “Target Offenses” that were under investigation as:

felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); use, brandishing and discharge of a firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c); manufacturing, importation, distribution and possession with intent to distribute controlled substances, and

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