United States District Court, N.D. West Virginia
REPORT AND RECOMMENDATION DENYING THE MOTION TO
MICHAEL JOHN ALOI, UNITED STATES MAGISTRATE JUDGE
matter is before the undersigned pursuant to an Order
Re-Submitting Defendant's Motion to Suppress entered by
Senior United States District Judge Irene Keeley on March 18,
2019. (ECF No. 215). A Motion to Suppress was filed by
Defendant on March 11, 2019 (ECF No. 204). This matter has
been fully briefed and oral argument was heard on the matter
on March 21, 2019. (ECF No. 216). This matter is now ripe for
a report and recommendation to the Honorable Irene Keeley.
Accordingly, the undersigned RECOMMENDS that
the Motion be DENIED in this entirety for
the foregoing reasons.
January 1, 2018, George P. Naum, III, was indicted on eleven
counts of a fifty count indictment. (ECF No. 1). Defendant
Naum was charged with Conspiracy to Distribute Controlled
Substances Outside the Bounds of Professional Medical
Practice in violation of 21 U.S.C. Section 841(a)(1),
841(b)(1)(E)(i), 841(b)(1)(E)(iii), and 846 (Count
Twenty-Two); and Aiding and Abetting the Distribution of
Controlled Substances Outside the Bounds of Professional
Medical Practice in violation of 21 U.S.C. Section 841(a)(1),
841(b)(1)(E)(i), 841(b)(1)(E)(iii), and 18 U.S.C. Section 2
(Counts Twenty-Three through Thirty-Two).
September 13, 2016, four search warrants were executed
simultaneously at four separate locations-Cambridge, Ohio
(hereinafter “Cambridge search warrant”); Advance
Healthcare in Weirton, West Virginia; the Morgantown, West
Virginia Office; and Dr. Brizuela's residence. The
connection between the Cambridge Office and the investigation
was that investigators believed that Defendant was using his
Ohio DEA Registration Number- BN2845583-to prescribe
patient's controlled substances in West Virginia and that
Defendant did not have a valid West Virginia DEA Registration
Number. ECF No. 218, at 17. Following the execution of all
the search warrants, investigators discovered that Defendant
did have a West Virginia DEA Registration
Number. The evidence seized during the Cambridge
search was subsequently sealed off from the investigators.
Also, during the execution of the Cambridge search warrant,
Defendant participated in an interview that lasted
approximately 90 minutes.
Motion to Suppress and Accompanying Memorandum (ECF Nos.
March 11, 2019, Defendant, by and through counsel, filed a
Motion to Suppress arguing that because of the defective
Cambridge search warrant, evidence obtained from the
Cambridge Office should be suppressed because the evidence
was discovered in violation of Defendant's Fourth
Amendment rights. (ECF No. 204). Moreover, Defendant argued
that the statements that he made during the September 13,
2016 Interview should be suppressed because the statements
were taken during the execution of a defective warrant, but
also in violation of Defendant's Fifth Amendment rights
against self-incrimination and the Sixth Amendment rights to
assistance of counsel.
Government's Response to the Motion to Suppress (ECF No.
March 15, 2019, the Government filed a Response stating that
it did not intend to use any statements made by Defendant
Naum during the September 13, 2016 Interview and the evidence
obtained has been sealed from both the U.S. Attorney's
Office and the investigating officers. Furthermore, the
Government stated that it does not object to the Motion.
Judge Aloi's Original Report and Recommendation (ECF No.
March 15, 2019, the undersigned entered a Report and
Recommendation recommending that the Motion to Suppress be
denied as moot. The undersigned reasoned that because the
Government did not object to the Motion and did not intend to
introduce the evidence, the Motion was moot.
Defendant's Objection to the undersigned's Report and
Recommendation (ECF No. 214).
March 18, 2019, Defendant, by and through counsel, filed his
objections to the undersigned's Report and
Recommendations. In his Objections, Defendant clarified his
Motion arguing that the information that the Government
obtained during the September 13, 2016 interview, in
violation of his Fifth and Sixth Amendment, were used in the
manner and means portion of the indictment. (ECF No. 214, at
3). Furthermore, that the defective warrant
“tainted” subsequently discovered evidence.
Government's Response to the Motion to Suppress (ECF No.
218) (hereinafter “Government's First Supplemental
March 20, 2019, the Government filed its First Supplemental
Response arguing the Motion to Suppress should be denied. The
Government argued that all of the information that Defendant
disclosed during the September 13, 2016 Interview was known
to investigators prior to the interview or obtained by
independent means. The Government pointed to the affidavit
for the four search warrants that were obtained in September
2016 to demonstrate the information known prior to
Defendant's statements. Furthermore, the Government
stated that it did not rely on the statements obtained during
the Interview with Defendant because the Government believed
Defendant was not being truthful during this interview. The
Government also argued that the warrant was based on probable
cause based on the mistaken belief that Defendant only had
one DEA registration number, BN2845583, but because
investigators made a good-faith effort to provide accurate
information in regard to Defendant's DEA Registration
Number held by Defendant Naum, the warrant was valid. The
Government also provided a list of independent sources that
provided information to investigators to demonstrate that it
did not rely on Defendant's September 13, 2016
statements. See ECF No. 218, at 14-33; ECF No. 218
Exhibits 1-16; ECF No. 221-1.
Government's Second Supplemental Response to Motion to
Suppress (ECF No. 219)
March 21, 2019, the Government filed its Second Supplemental
Response to Defendant's Motion informing the court that
Defendant was in fact using his Ohio DEA registration number
to prescribe suboxone to patients in West Virginia in
violation of federal law. The Government argued that despite
their rush to be candid with the court regarding the mistaken
information, the Government was originally correct in the
search warrant affidavit that Defendant was using his Ohio
DEA registration number to prescribe suboxone in West
Government's Third Supplemental Response to the Motion to
Suppress (ECF No. 221)
the Motion Hearing on March 21, 2019, the undersigned
requested that the Government supplement the Record with the
audio recording of the September 13, 2016 interview of
Defendant and the Records that the Government believes
demonstrated that the Conspiracy began in 2008-which
Defendant argued that the Government did not know but for his
statements during the September 13, 2016
The Motion Hearing
the Motion Hearing, neither party presented live testimony of
witnesses. The argument and proffers presented by both the
Government and Defendant were supported by documents.
Sufficiency of Warrant/Leon Good-Faith
Government argued that the warrant was based on probable
cause because, based on the information known to officers at
the time of the application, there was reason to believe that
Defendant was prescribing controlled substances using his
Ohio DEA Registration Number in West Virginia. (March 21,
2019 Motion Hearing, at 9:00 AM). The Government proffered that
it was their belief that any medical records contained in the
Cambridge Office would evidence this theory, as medical
records are required to be kept in the location that the
registration number is assigned, and any absence of these
documents would be further evidence that Defendant was
violating the law. Id. at 9:01. The Government,
after being notified of the mistake, sealed these documents
out of an abundance of caution. Id. These search
warrants were executed simultaneously with the other three
warrants and Defendant's valid West Virginia Registration
Number was discovered during the Advance Health Care search.
Id. at 9:02. The Government argued that the
Leon good-faith exception would “save”
the warrant and any evidence obtained as a result of that
warrant, including statements made by defendant during the
execution of said warrant.
Government argued that case agents, prior to the application
of the search warrant, searched the DEA Registration Number
database and found that Defendant only had one valid DEA
Registration Number-BN2845583. Id. at 9:05 AM. The
case agent and two Diversion Investigators re-searched the
names and only found one valid entry for Defendant.
Id. The Government classified this as an
“honest mistake, ” but argued that the case
agents were diligent in their search. Id.
the discovery of the mistake, the Government authored three
letters to all three Magistrate Judge's outlining the
discovery of the mistake:
In the days leading up to the application for the search
warrant, Diversion Investigator Guy McCartney of the DEA had
accessed the Registrant Information Consolidated System
(RICS) which is a database operated by the DEA which
identified physicians who are registered with the DEA to
prescribe controlled substances. DI McCartney ran a query by
last name for “Naum” and identified five entries
that contained variations of Dr. Naum's name. The only
entry that showed an active DEA registration number was the
entry for registration number BN2845583. Two other diversion
investigators, DI William Crawford and his partner DI Rachel
Tompkins, who were tasked with seeking the voluntary
surrender of Dr. Naum's DEA license, had also accessed
the RICS system in the days leading up to the execution of
the search warrants and ran a query under the last name
“Naum.” Like DI McCartney, DI Crawford and DI
Tompkins identified only one registration number, BN2845583,
associated with the Dr. Naum.
ECF No. 205-1, at 2.
Government further argued that the mistake contained in the
Cambridge affidavit did not affect the validity of the other
warrants, and the mistake, only took away the connection from
the Cambridge Office and the unlawful behavior. Motion
Hearing at 9:15 AM. The Government stated it now knows that
the connection still exists because information obtained
later demonstrated that Defendant was prescribing medication
using his Ohio DEA Registration Number in West Viriginia.
Counsel argued that the statements contained in the affidavit
provided no probable cause that there was a crime being
committed by Defendant. Id. at 9:20-9:22. Defense
Counsel argues that Paragraph 11 of the Affidavit stated that
Defendant Naum had a practice in Cambridge, Ohio-which does
not provide probable cause that a crime was committed.
Id. Paragraphs 57 and 58 stated that the number of
patients that Defendant could treat was increased-which
Defense Counsel argues does not create probable cause.
Id. Paragraphs 69-79 stated that Defendant Naum
treated patients, looked at records, and prescribed
suboxone-which Defense argues does not create probable cause.
Id. Paragraphs 89 and 91 stated that Defendant was
present on the last three Tuesdays of May 2018. Id.
Defense Counsel argued that the basis of the warrant was that
Defendant was using his Ohio DEA Registration Number in West
Virginia-which at the time was believed to be false
Id. at 9:23. Defense Counsel argued that officers
should have known that because Defendant Naum had several
relatives who were also doctors, they may need to search
another name in the DEA registration database. Id.
Government argued that the September 12, 2016 Interview,
during which Defendant made several statements, was a
non-custodial and voluntary interview. Id. at 9:08.
The Government argued that at the beginning of the interview,
Diversion Investigator Crawford told Defendant he was free to
leave. The Interview took place in the hospital, in an
adjacent room to the Cambridge Office. Furthermore, DI
Crawford did not have a firearm, nor is he permitted to carry
a firearm, did not have handcuffs, and did not have arresting
authority. Id. at 9:08-09. The Government stated
that during the interview that there was one DI agent and a
member of the Ohio State Medical Board. Id. at 9:09.
Counsel argued that Defendant Naum had never been arrested
before, “had no idea what to do, ” and he is with
all his staff and employees. Id. at 9:29. Defense
Counsel further argued that while he was told he was free to
leave, he was not going to leave because all of his medical
records and staff were still at the Cambridge location.
Id. Defense Counsel also stated that the tone of the
interview was very accusatory; the interviewers told
Defendant that he was lying and that he was going to be
Fruit of the poisonous tree
Government further argued that even if the statements were
taken in violation of his Fifth and Sixth Amendment rights
and the search warrant was invalid, other independent sources
provided the information and was obtained either
simultaneously to the execution of the Cambridge Warrant or
was obtained from an independent source. Id. at
9:11. The Government argued that it understood prior to the
search warrant about the structure of what the Government
calls the “conspiracy.” Furthermore, the
Government stated that the only new evidence that was
provided by Defendant Naum's statements was that Ms.
Jackson did not have medical authority. Id. at 9:13.
The Government stated that they did not rely on this
information because they understood this information to be
false. Id. at 9:13-14. The Government reiterated its
belief that the search warrant was executed lawfully and does
not concede that either the interview or the evidence was
taken in violation of the law. Id. at 9:17.
Counsel argued that the Manner and Means provided in the
Indictment mirrors the information discovered during the
September 13, 2016 Interview. Id. at 9:18. Defense
Counsel argues that the affidavit attached to the Cambridge
search warrant “freezes” the information known to
officers and the Government and any other information was
obtained unlawfully. Id. Specifically, Defense
Counsel pointed to the date that the conspiracy allegedly
started according to the Indictment. The Indictment stated
that the conspiracy started in 2008, but the information
contained in the Affidavit provided only information known on
or after 2015. Id. at 9:19. There is no information
contained in the Affidavit from 2008 to 2015. Id. at
Counsel also stated that without the testimony of the
officers, there is no evidence that the officers conducted a
completely taint free interview. Id. at 9:34. There
is no evidence that the officers were not affected by the
false information and that information could have been
relayed through their interview. Id.
The Warrant provided mistaken information but is protected by