Opinion
2:12-CR-463 JCM (VCF)
05-30-2014
UNITED STATES OF AMERICA, Plaintiff(s), v. FREDERICK VERNON WILLIAMS, et al., Defendant(s).
ORDER
Presently before the court is the matter of United States v. Williams, case no. 2:12-cr-463-JCM-VCF. This order addresses the following:
• Magistrate Judge Ferenbach's report and recommendation that defendant Frederick Williams' motion to suppress the search warrant be denied. (Doc. # 120).
• The magistrate judge's report and recommendation that Williams' motion to suppress involuntary statements be granted. (Doc. # 121).
• The magistrate judge's report and recommendation that defendant Jacqueline Gentle's motion to suppress the search warrant be denied. (Doc. # 128).
• The magistrate judge's report and recommendation that Williams' motion to dismiss the indictment be denied. (Doc. # 202).
• The magistrate judge's report and recommendation that Williams' motion to suppress the search warrant be denied. (Doc. # 203).
• Williams' motion for reconsideration of the magistrate judge's order denying his motion to reopen bail. (Doc. # 220).
• Williams' motion for adoption of defense objections. (Doc. # 231).
I. Background
Williams is awaiting trial on charges of false citizenship, 18 U.S.C. § 911, false statement in application for passport, 18 U.S.C. § 1542, aggravated identity theft, 18 U.S.C. § 1028A(a)(1), conspiracy, 18 U.S.C. § 1349, and mail fraud, 18 U.S.C. § 1341.
On December 11, 2012, Agent Roland of the United States Diplomatic Security Service applied for a search warrant for the premises located at 2637 Soledad Way, N. Las Vegas, Nevada 89030 (hereinafter "Soledad Way"), and two automobiles. The application/affidavit for search warrant stated that a cooperating witness ("CW") provided information to Agent Roland relating to defendant Williams and his co-defendants, and that "[t]he substantive information the CW provided to me has been independently corroborated by various investigative methods and the CW has proved to be reliable."
The search warrant application/affidavit identifies defendant Williams as "Subject 1," and states that defendant Williams is alleged to have fraudulently obtained a U.S. passport using a computer and finding a man who is a U.S. citizen with the same name as his father. The application/affidavit also states that Williams is potentially involved in an unemployment compensation fraud scheme, and provides the background of the investigation into such allegations. The application/affidavit also discusses co-defendants and their involvement in the scheme. (See application/affidavit for search warrant, doc. # 92-1).
The instant motions contest the validity of the warrant on numerous grounds, seek to dismiss the indictment on numerous grounds, seek to suppress statements made upon interrogation, and request to be released pending trial.
II. Legal Standard
A. Reports and recommendations
This court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). Where a party timely objects to a magistrate judge's report and recommendation, then the court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." 28 U.S.C. § 636(b)(1). The court is not required to conduct "any review at all . . . of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149 (1985).
B. Reconsideration and LR 3-1 objections
A district judge "may reconsider any pretrial matter [adjudicated by the magistrate judge] . . . where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); LR IB 3-1(a). The district judge may "affirm, reverse or modify, in whole or in part, the ruling made by the magistrate judge." LR IB 3-1(b). Under the "clearly erroneous" standard, the magistrate judge's ruling must be accepted unless, after a review of the record, the court is "left with the definite and firm conviction that a mistake has been committed." United States v. Silverman, 861 F.2d 571, 576-77 (9th Cir.1998).
III. Discussion
Because defendant Frederick Williams is proceeding in pro se, his filings are numerous and difficult to follow. The court has done its best to identify the salient points and will address each motion and argument in the manner most convenient for it.
A. Report and recommendation on defendant Williams' motion to suppress the search warrant
The magistrate judge issued two reports recommending that Williams' motions to suppress the search warrant be denied. (Docs. # 120, 203). Williams has objected to the reports and recommendations (docs. # 170, 214) and the government has responded (docs. # 179, 232).
The motions object to the sufficiency of the warrant issued for Soledad Way. Williams first argues that probable cause did not exist to justify the issuance of the warrant (doc. # 92) and later that the warrant was overbroad and was executed in violation of Fed. R. Crim. P. 41 (doc. # 175). Each argument is addressed in turn.
I. Probable cause
Williams contests whether there was probable cause to believe that evidence of a crime would be found at the Soledad Way residence. In particular, Williams argues that Agent Roland set forth facts indicating that he had knowledge that Williams had been involved in prior crimes; however that his affidavit is insufficient to establish that specific objects connected to those particular crimes would be located at Soledad Way. Williams' primary contention is that investigation was conducted at the Congress Avenue residence, but not enough was done with regards to Soledad Way.
According to the CW, Williams had resided at 3123 Congress Ave., Las Vegas, NV 89121, when the investigation begin. On September 18, 2012, agents began conducting surveillance of that location. On December 6, 2012, the CW informed Agent Roland that Williams had moved to the Soledad Way residence, which the agents thereafter surveilled. (Doc. # 92-1, p. 13-14).
When issuing a search warrant, the magistrate judge is only required "to answer the commonsense, practical question whether there is probable cause to believe that contraband or evidence is located in a particular place." United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir. 2006)(quotations omitted). This court must pay "great deference" to the probable cause determination made by the magistrate judge issuing the search warrant. Illinois v. Gates, 462 U.S. 213, 236 (1983). Magistrate judges are entitled to draw "reasonable inferences about where evidence is likely to be kept," and it is not required that the affidavit contain direct evidence that items are at a particular location to establish probable cause regarding that location. United States v. Angulo-Lopez, 791 F.2d 1394 (9th Cir. 1986) (citing United States v. Jackson, 756 F.2d 703, 705 (9th Cir. 1985)).
In analyzing the sufficiency of the application/affidavit and whether it justified probable cause, the magistrate judge found as follows:
(1) the agents were working with a CW who was close to the defendant [by marriage], (2) the information provided by the CW regarding the allegations and defendant's prior residence was reliable, (3) the CW had informed the agents that defendant Williams had(Report and recommendation, doc. # 120, p. 7-8).
moved to 2637 Soledad Way, (4) surveillance was conducted of the residence, and (5) cars registered to defendant were seen outside the residence for a twenty-four (24) hour period and at 3:00 a.m.
This court has independently reviewed the application/affidavit. (Doc. # 92-1). The court agrees with the magistrate judge's conclusion that these averments contained within the application/affidavit were sufficient to establish probable cause that evidence of the alleged crimes would be found at Soledad Way.
ii. Overbreadth
A warrant is sufficiently particularized if it establishes: (1) whether probable cause exists to seize all items of a particular type described in the warrant; (2) whether the warrant sets out objective standards by which the executing officers can differentiate items subject to seizure from those which are not; or (3) whether the government was able to describe the items more particularly in light of the information available to it at the time the warrant was issued. United States v. Spilotro, 800 F.2d 959, 963 (9th Cir. 1986). The warrant's description of items need only be "reasonably specific, rather than elaborately detailed." Id. (citations omitted).
Williams argues the warrant is overbroad because the list of items to be seized provides, inter alia, (1) passport and travel documents; (2) records and information relating to Luna Consulting; and (3) records and information relating to Samuel Lopez, Kenneth Burchett, Bruce Forrester, Kyston Patterson, Joel Collins, Maties Saravia, Keith Martin, Patrice Carter, Carolyn Willis, and Marcus Liu.
Williams is charged with aggravated identity theft, false citizenship claims, and fraud. As stated in the search warrant affidavit, Williams allegedly used his company, Luna Consulting, to execute his scheme, which also allegedly involved the individuals listed. (See affidavit, doc. # 92-1).
In addition, the warrant identified Williams' home and car as places to be searched based on information obtained from the C.W., along with Agent Rowland's experience, that Williams possessed, manufactured, and sold fraudulent identification documents from his home and/or vehicles. (See affidavit, doc. # 92-1, at 12-14).
This court agrees with the magistrate judge's conclusion that the warrant was sufficiently particularized. (See doc. # 203).
iii. Fed. R. Crim. P. 41
Williams alleges that the agents executing the warrant did not provide him with a copy nor did they tell him what he was being arrested for. Based on those allegations, Williams contends that the warrant violated Fed. R. Crim. P. 41(d) and evidence seized during the search should be suppressed.
"[S]uppression is rarely the proper remedy for a Rule 41 violation." United States v. Williamson, 439 F.3d 1125, 1132 (9th Cir. 2006). "Only a fundamental violation of Rule 41 requires automatic suppression, and a violation is fundamental only where it, in effect, renders the search unconstitutional under traditional fourth amendment standards." United States v. Johnson, 660 F.2d 749, 753 (9th Cir. 1981).
"There are three circumstances under which evidence obtained in violation of [Rule 41] requires suppression: 1) the violation rises to a 'constitutional magnitude;' 2) the defendant was prejudiced, in the sense that the search would not have occurred or would not have been so abrasive if law enforcement had followed the Rule; or 3) officers acted in 'intentional and deliberate disregard' of a provision in the Rule." Williamson, 439 F.3d at 1133 (citing United States v. Martinez-Garcia, 397 F.3d 1205, 1213 (9th Cir.); cert. denied, 546 U.S. 901 (2005)).
Here, Williams has not alleged that the violation rises to a constitutional magnitude. Likewise, he has not alleged that he was prejudiced and the court finds no evidence of such upon its own review. Finally, there has been no evidence presented that the officers acted in intentional and deliberate disregard of the rule. (See motion to suppress, doc. # 175, p. 14-16). Accordingly, the court concludes that any violation of Rule 41 was a "mere technical error" which does not warrant suppression. Williamson, 439 F.3d at 1133.
Upon review of the arguments and the report and recommendation, the court finds the magistrate judge properly denied Williams' motions to suppress (docs. # 92, 175). The report and recommendations (docs. # 120, 203) are adopted in their entireties.
B. Report and recommendation on defendant Williams' motion to suppress involuntary statements
Williams filed a motion to suppress involuntary statements (doc. # 91) to which the government opposed (doc. # 118). After considering the briefing and holding a hearing on the matter, the magistrate judge issued a report which recommended that Williams' motion be granted. (Doc. # 121). The government did not file objections in response.
Where a party fails to object to a report and recommendation, the court is not required to conduct "any review at all . . . of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149 (1985). Indeed, the Ninth Circuit has recognized that a district court is not required to review a magistrate judge's report and recommendation where no objections have been filed. See United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir. 2003) (disregarding the standard of review employed by the district court when reviewing a report and recommendation to which no objections were made); see also Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (reading the Ninth Circuit's decision in Reyna-Tapia as adopting the view that district courts are not required to review "any issue that is not the subject of an objection."). Thus, if there is no objection to a magistrate judge's recommendation, then this court may accept the recommendation without review. See, e.g., Johnstone, 263 F. Supp. 2d at 1226 (accepting, without review, a magistrate judge's recommendation to which no objection was filed).
Nevertheless, this court finds it appropriate to engage in a de novo review to determine whether to adopt the recommendation of the magistrate judge. The magistrate judge's ruling came down to a credibility determination between the agent(s) who interviewed Williams and Williams himself. The government has not objected to the magistrate judge's conclusion, apparently conceding that the agents' versions of the interrogation are contradictory and that the conclusion that Williams' testimony was more reliable was not in err. Accordingly, this court has no basis upon which to reject the magistrate judge's credibility determination.
Upon reviewing the recommendation and underlying briefs, this court finds good cause appears to ADOPT the magistrate's findings in full. The magistrate judge's report and recommendation (doc. # 121) are adopted in their entireties and Williams' motion to suppress involuntary statements (doc. # 91) is granted.
C. Report and recommendation on defendant Gentle's motion to suppress
Defendant Jacqueline Gentle has filed a motion to sever (doc. # 95) and motion to suppress the search warrant (doc. # 94). The magistrate judge issued a report which denied the motion to sever without prejudice and recommended that the motion to suppress be denied for lack of standing. (Doc. # 128). Gentle has not filed objections in response.
Although not required to, see Thomas, 474 at 140, the court finds it appropriate to engage in a de novo review to determine whether to adopt the recommendation of the magistrate judge. Upon reviewing the recommendation and underlying briefs, this court finds good cause appears to ADOPT the magistrate's findings in full.
The magistrate judge's report and recommendation (doc. # 128) are adopted in their entireties and Gentle's motion to suppress (doc. # 94) is denied.
D. Report and recommendation on William's motion to dismiss the indictment
The magistrate judge issued a report recommending that Williams' motion to dismiss the indictment be denied. (Doc. # 202). Williams has objected (doc. # 213) and the government has responded (doc. # 232).
Williams' multiple motions to dismiss the superseding indictments argue first that count three of the indictment charging him with aggravated identity theft is barred by the statute of limitations. Second, Williams argues that counts 8 through 23 should be dismissed for selective prosecution, vindictive prosecution, and deporting a witness in violation of his due process rights.
With respect to Williams' argument regarding count three, the magistrate judge ruled as follows:
Williams' argument is unpersuasive for two reasons. First, under Rule 12, the court (1) takes the indictment's allegations as true, see Sampson, 371 U.S. at 78-79, and (2) limits its review to the indictment's four corners. Boren, 278 F.3d at 914. Here, the indictment alleges that Williams violated 18 U.S.C. § 1028(A) "on or about January 30, 2008, through on or about March 3, 2009." (See(Report and recommendation, doc. # 202, p. 3).
Second Super. Indict. (#142) at 2:11-12). Under Rule 12, this is sufficient because Williams was indicted on December 11, 2012, which is within the five-year state of limitations. (See Indict. #1). Hamling, 418 U.S. at 117.
Second, Williams' argument regarding "use" is unpersuasive because the court cannot consider evidentiary questions on a Rule 12 motion to dismiss. See FED. R. CRIM. P. 12(b); Jensen, 93 F.3d at 669 (citation omitted) ("A motion to dismiss the indictment cannot be used as a device for a summary trial of the evidence").
The magistrate judge's ruling was correct because "the court should not consider evidence not appearing on the face of the indictment." Jensen, 93 F.3d at 670 (quoting United States v. Marra, 481 F.2d 1196, 1199-1200 (6th Cir. 1973)). As a result, Williams' dispute with regards to the dates in question that encompass this charge may not be considered by the court at this time.
Turning next to Williams' arguments regarding counts 8 through 23, the magistrate judge correctly concluded that the inclusion of these counts do not violate Williams' due process rights.
First, Williams has not sufficiently demonstrated that the government has sought additional charges solely to punish him for exercising his constitutional or statutory rights. See United States v. Hernandez-Herrera, 283 F.3d 1213, 1217 (9th Cir. 2001). Williams' bare allegations that the superseding indictments have been brought solely because he exercised his "right to seek pretrial release, voluntary departure to Belize, right to dismiss counsel, right to proceed pro se, right to trial, right to apply for bail, and right to challenge his immigration order of removal" (doc. # 176, p. 5) are not supported by "direct evidence of actual vindictiveness or facts that warrant an appearance of such." United States v. Montoya, 45 F.3d 1286, 1299 (9th Cir. 1995).
Next, Williams' argument that the government is selectively prosecuting him is not supported by any credible evidence that others similarly situated have not been prosecuted or that the prosecution is based on an impermissible motive. See United States v. Wayte, 710 F.2d 1385 (9th Cir. 1983). His subjective belief that he and/or his family are being impermissibly targeted is simply not evidence. Accordingly, the magistrate judge correctly rejected this argument.
Finally, Williams has failed to make a plausible showing that the deportation of a potential witness, Joel Collins, "would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses" and that "there was a reasonable likelihood that the testimony would have affected the judgement." United States v. Valenzuela-Bernal, 458 U.S. 858, 872-73 (1982); United States v. Cervantes-Gaitan, 792 F.2d 770, 773 (9th Cir. 1986).
Upon review of the underlying motions, the magistrate judge's report and recommendations, and the objections thereto, the court hereby adopts the report and recommendations (doc. # 202) in their entireties. Williams' motion to dismiss the indictment (doc. #176) is denied.
E. Williams' motion for reconsideration of the magistrate judge's order declining to reopen bail
Williams seeks reconsideration of the magistrate judge's order denying his motion to reopen bail. (Doc. # 220). The government has filed a response in opposition. (Doc. # 228).
Following indictment, the magistrate judge ordered the defendant released on personal recognizance with certain conditions. Williams was thereafter was taken into custody by ICE on a detainer.
On January 23, 2013, the government filed a petition regarding defendant's pretrial release status (doc. # 23) wherein it asserted that the defendant had appeared before an immigration judge and stated he wished to be voluntarily deported to his country of birth, Belize. Following defendant's arrest on the petition, he was detained pending a revocation hearing. (Doc. # 37).
At the revocation hearing, the government further alleged that, in 2004, Williams had submitted a false application to the Nevada DMV wherein he listed his country of birth as St. Croix, Virgin Islands. It was also alleged that the defendant told the immigration judge that he wished to take his mother with him back to Belize.
The government argued that, based on Williams' multiple conflicting accounts of his place of birth and his expressed desire to return to Belize, he is a "fraudster" who cannot be trusted to comply with his pretrial release conditions, in particular his travel restrictions. Based on these representations, the magistrate judge concluded that the defendant posed a flight risk and ordered him detained.
Most of the arguments before the magistrate on the motion to reopen bail centered around what, specifically, Williams told the immigration judge regarding his desire to return to Belize. The parties represented to the magistrate that a transcript of those proceedings was not available, but one could be obtained in several weeks. The magistrate judge indicated he would be open to revisiting the issue with the benefit of the record of the immigration proceedings before him.
Apparently unhappy with that time frame, the defendant has filed the instant motion, which further requests that the court listen to the oral record of those proceedings in lieu of reviewing the written transcripts.
The defendant has recently filed a "brief" in which he argues that he never made those statements. (Doc. # 237). The recording Williams has marked as exhibit one-in addition to not being properly authenticated-supports the government's contentions. When asked by the immigration law judge what the status of his citizenship is, Williams attempted to "waive" his United States citizenship, admitted he is a citizen of Belize, and requested to be voluntarily departed so that he may gather his family to take with him. (Doc. # 237, ex. 1, track 3 at appx. 2:55). In response to a question posed by the judge, Williams also specifically confirms that he desires to return to Belize with his mother. (Id., track 6 at appx. 3:30-50). It should be noted that members of his family-in particular his wife, sister, and brother-are co-defendants in the instant case.
Based on the representations made by Williams, the government, and the nature of the offenses as charged in the indictment, the court is unable to conclude that the magistrate judge's order denying the motion to reopen bail is "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); see also Silverman, 861 F.2d at 576 (discussing clearly erroneous standard and holding a ruling must be accepted in absence of a "definite and firm conviction that a mistake has been committed."). Williams' motion for reconsideration (doc. # 220) is therefore denied.
F. Williams' motion for adoption of defense objections
Williams filed a motion titled "adoption of defense objections" (doc. # 231) in connection with his previously filed objections (docs. # 213, 214) to the magistrate judge's reports and recommendations.
Williams has repeatedly alleged that the government is vindictively prosecuting him based on the filing of multiple superseding indictments. This motion essentially requests the court adopt his objections to the reports and recommendations on the basis that the government inadvertently failed to respond to his objections on time.
The motion is denied. The government has fully briefed each issue in front of the magistrate. Further, the government obtained favorable rulings on these motions and is not required to file a reply to his objections in any event.
IV. Conclusion
In summary, Williams' motions to suppress the search warrant, dismiss the indictment, reconsider the magistrate judge's order, and adopt defense objections are each denied. Williams' motion to suppress involuntary statements is granted. Defendant Jacqueline Gentle's motion to suppress is denied.
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, and DECREED that the magistrate judge's reports and recommendations (docs. # 120, 203) be, and the same hereby are, ADOPTED in their entireties. Williams' motions to suppress the warrant (docs. # 92, 175) are hereby DENIED.
IT IS FURTHER ORDERED that the magistrate judge's report and recommendation (doc. # 121) be, and the same hereby are, ADOPTED in their entireties. Williams' motion to suppress involuntary statements (doc. # 91) is hereby GRANTED.
IT IS FURTHER ORDERED that the magistrate judge's report and recommendation (doc. # 128) be, and the same hereby are, ADOPTED in their entireties. Jacqueline Gentle's motion to suppress (doc. # 94) is hereby DENIED.
IT IS FURTHER ORDERED that the magistrate judge's report and recommendation (doc. # 202) be, and the same hereby are, ADOPTED in their entireties. Williams' motion to dismiss the indictment (doc. # 176) is hereby DENIED.
IT IS FURTHER ORDERED that the parties' joint motion to review recordings in lieu of transcripts (doc. # 212) be, and the same hereby is, GRANTED.
IT IS FURTHER ORDERED that Williams' motion for reconsideration (doc. # 220) be, and the same hereby is, DENIED.
IT IS FURTHER ORDERED that Williams' motion for adoption of defense objections (doc. # 231) be, and the same hereby is, DENIED.
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UNITED STATES DISTRICT JUDGE