United States v. Rashwan

684 F.Supp.3d 347

UNITED STATES of America v. Mahmoud Ali Ahmed RASHWAN

CRIMINAL ACTION NO. 22-118

United States District Court, E.D. Pennsylvania

Filed July 27, 2023

Danielle Rosborough, Assistant U.S. Attorney, DOJ-USAO, Philadelphia, PA, Josh A. Davison, Mary A. Futcher, Assistant U.S. Attorneys, U.S. Attorney's Office, Philadelphia, PA, for United States of America.

Jose C. Campos, The Law Office of Jose C. Campos, Bethlehem, PA, Jonathan Alan McDonald, Public Defender, Federal Community Defender Office for The Eastern District, Philadelphia, PA, for Mahmoud Ali Ahmed Rashwan.

Mahmoud Ali Ahmed Rashwan, Allentown, PA, Pro Se.

MEMORANDUM OPINION

SCHMEHL, District Judge

Pursuant to the Third Superseding Indictment in this case (ECF No. 156), a grand jury has charged Defendant Mahmoud Ali Ahmed Rashwan with two counts of possession of a firearm by an alien illegally or unlawfully in the United States in violation of 18 U.S.C. § 922(g)(5)(A) and one count of making false statements to a federal firearms licensee in violation of 18 U.S.C. § 924(a)(1)(A). Presently before the Court is Mr. Rashwan's Amended Motion to Suppress Evidence Obtained from Unlawful Arrest (ECF No. 55), in which he requests suppression of all evidence gathered on the date of his arrest. Following a change in counsel, Mr. Rashwan filed his Omnibus Pretrial Motion (ECF No. 120), in which he challenges the ping warrant obtained by the Government and alleges Miranda violations. The Court held suppression hearings on March 3, 2023, and April 11, 2023, to obtain testimony from the relevant law enforcement officers concerning Mr. Rashwan's arrest. For the following reasons, the Court rejects Mr. Rashwan's arguments.

I. ALLEGED FACTS

As detailed in other memoranda of this Court,¹ Mr. Rashwan overstayed his visitor visa, applied for asylum thereafter, and then had the visa expiration date retroactively extended. After that extended date, but while his asylum application remained pending, Mr. Rashwan allegedly rented firearms for use at the Heritage Guild of Easton Range on at least four occasions between May 30, 2021, and February 14, 2022. Mr. Rashwan then allegedly made misrepresentations when he completed ATF Form 4473 on February 26, 2022, in an attempt to purchase his own firearm. The next day, Mr. Rashwan allegedly began posting on an online gun forum in search of a firearms seller. By March 1, 2022, he had contacted numerous potential sellers on that site, and he allegedly successfully purchased a Stag Arms AR-15 Rifle, magazines, and hundreds of rounds of ammunition from one such seller on March 2, 2022. The Government further alleges that Mr. Rashwan continued to seek additional firearms on the online forum through March 5, 2022.

On March 9, 2022, Magistrate Judge Pamela Carlos issued the operative amended order and search warrant permitting the Government to obtain "[l]ocations of cell towers to which the Target Cell Phone connected," also known as cell site location information ("CSLI"). See Amended Order at 2, United States v. Cellular Device Assigned Call Number (484) 274-9937 in the Custody or Control of AT&T Corp., No. 22-mj-00392 (E.D. Pa. March 9, 2022), ECF No. 8 [hereinafter Search Warrant Order]. The document describing information to be seized also included location data known as "enhanced 911" or "E-911" data. See Amended Affidavit in Support of an Amended Application for a Search Warrant attach. B, § I.a.iv., United States v. Cellular Device Assigned Call Number (484) 274-9937 in the Custody or Control of AT&T Corp., No. 22-mj-00392 (E.D. Pa. March 9, 2022), ECF No. 5-1 [hereinafter Search Warrant Aff.]. According to the affidavit supporting the Government's search warrant application, E-911 data provide a user's location "either via GPS tracking technology built into the phone or by triangulating on the device's signal using data from several of the provider's cell towers," usually resulting in more precise location data than CSLI. Id. ¶ 21. In either case, the search warrant contemplated the collection of future or prospective data, not historical data, for no more than 30 days. Search Warrant Order at 2-3.

The Government's affidavit noted Mr. Rashwan's frequent trips to the Heritage Guild range and that he "used the Target Cell Phone as his contact number on the Heritage Guild of Easton Range, LLC, Customer Information Form, that he signed on May 30, 2021." Search Warrant Aff. ¶ 1 n.1. That affidavit also claimed as follows:

I further believe that evidence of violations of Title 18, United States Code, Section 924(a)(1)(a), and Title 18, United States Code, 922(g)(5)(A) & (B), will be obtained through the issuance of this search warrant, to include the identification of locations where Rashwan illegally possesses and discharges firearms at shooting ranges, and further attempts by Rashwan to illegally purchase firearms and submit false information on Forms 4473 to illegally acquire the firearms. The investigation has revealed that Rashwan's behavior has escalated from going to Heritage Guild where he rented firearms to shoot, to actually attempting to purchase a firearm as demonstrated by his completion of the Form 4473. For these reasons, based on my training and experience, and knowledge of this investigation, I believe that the issuance of this search warrant will provide evidence in furtherance of Rashwan's illegal activities.

Id. ¶ 20.

On March 12, 2022, at around 12:30 p.m., the location data obtained by the Government through this search warrant alerted agents to Mr. Rashwan's potential presence at a shooting range on state game lands in New Tripoli, Pennsylvania. Despite the snowfall and cold, Mr. Rashwan was indeed at that range with his two brothers and, by 12:28 p.m., had already been in contact with the on-duty game warden, David Furmato. Officer Furmato, who then was unaware of the Government's investigation into Mr. Rashwan, testified that he heard a number of shots in excess of the range's six-round limitation. (Hr'g Tr. at 14:13-21, March 3, 2023, ECF No. 133.) This violation prompted Officer Furmato to approach the group and conduct a routine inspection of Mr. Rashwan's firearm and range permit. (Id. at 15:17-20.) During this time, Officer Furmato chatted with Mr. Rashwan and his brothers about the weather, Mr. Rashwan's firearm, and the fact that the group had parked their car outside of the parking area. (ECF No. 67-1 at 2-4.) Officer Furmato permitted the group to continue shooting while he left to review the permit. (Id. at 4.) He briefly returned to gather the group's driver's licenses, during which time he again discussed the weather and the optic sight on the firearm. (Id. at 5-6.)

At 12:43, as Officer Furmato reviewed the licenses in his vehicle, he received a call from FBI Task Force Officer ("TFO") William Tyler Kreider, who instructed him to prevent Mr. Rashwan and his brothers from leaving. (Earlier, around 12:30 p.m., TFO Kreider had received a call from FBI Special Agent Eddie Garcia, who informed TFO Kreider that Mr. Rashwan appeared to be at the state game lands range. (Hr'g Tr. at 46:19-47:12, Apr. 11, 2023, ECF No. 143.)) Seven minutes later, Officer Furmato then returned to the range and continued chatting with Mr. Rashwan and his brothers, during which time Mr. Rashwan indicated that the group visited the range "every once in a while," including in the prior week. (ECF No. 67-2 at 5.) TFO Kreider arrived only a few minutes later and asked, in light of the weather, how far away the group lived. (Id. at 6.) He then commented on Mr. Rashwan's firearm and asked him where he obtained it. (Id. at 8.) Mr. Rashwan mentioned coming to both the state game lands range as well as the Heritage Guild. (Id. at 9.) Around 1:00 p.m., TFO Kreider took Mr. Rashwan's documents and advised him that he was only supposed to have one guest at the range. (Id. at 10-11.) TFO Kreider left to take a call from a supervisory special agent, who requested an update on the situation for the benefit of two FBI special agents en route. TFO Kreider explained as follows:

I've gotten Rashwan to admit that the rifle that he was shooting um belongs ton [sic] him . . . . I've been out talking to them um they're being cooperative with me because they don't know what's going on necessarily. They admitted to um they're from Egypt. Rashwan has admitted to transactions and shooting over at Heritage Guild which we kind of already knew . . . . We are kind of stalling trying to wait until [the special agents] can get here . . . .

(ECF No. 67-3 at 12.)

In the meantime, the group chatted with Officer Furmato about living in New York and Allentown and growing up in Egypt. (ECF No. 67-2 at 12-13.) At 1:17 p.m., TFO Kreider returned to the range. The group discussed serving in the Egyptian miliary, and Mr. Rashwan left to use the restroom unaccompanied by either TFO Kreider or Officer Furmato. (Id. at 44-47; Hr'g Tr. at 10:4-12, Apr. 11, 2023.) Around 1:32 p.m., Mr. Rashwan indicated that the group was preparing to leave the range. (ECF No. 67-2 at 47.) This prompted TFO Kreider to reply, "Okay let me go make a phone call and see what's taking so long and what not." (Id.) After he then returned to his vehicle to contact the special agents, Officer Furmato again noted the cold weather, to which one of Mr. Rashwan's brothers replied, "Yeah I'm suffering we are suffering I mean in this weather." (Id. at 49.) Meanwhile, the special agents asked TFO Kreider to secure the firearm and ammunition, which he did at 1:34 p.m. (ECF No. 67-3 at 27.)

Citing a discrepancy with the firearm, TFO Kreider and Officer Furmato patted down the group. (ECF No. 67-2 at 57-58.) TFO Kreider patted down Mr. Rashwan separately and asked him about his purchase of the firearm through an online forum. (ECF No. 67-3 at 28-32.) After Mr. Rashwan requested to wait in his vehicle, TFO Kreider eventually permitted the group to wait in his and Officer Furmato's vehicles. (ECF No....