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United States v. Naum

United States District Court, N.D. West Virginia

March 25, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
GEORGE P. NAUM III, Defendant.

          REPORT AND RECOMMENDATION DENYING THE MOTION TO SUPRESS

          MICHAEL JOHN ALOI, UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. FACTUAL BACKGROUND

         On 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).

         On 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.[1] 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.

         II. PROCEDURAL POSTURE

         a. Motion to Suppress and Accompanying Memorandum (ECF Nos. 204-05)

         On 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.

         b. Government's Response to the Motion to Suppress (ECF No. 211)

         On 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. Id.

         c. Judge Aloi's Original Report and Recommendation (ECF No. 212)

         On 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.

         d. Defendant's Objection to the undersigned's Report and Recommendation (ECF No. 214).

         On 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.

         e. Government's Response to the Motion to Suppress (ECF No. 218) (hereinafter “Government's First Supplemental Response”)[2]

         On 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[3] 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.

         f. Government's Second Supplemental Response to Motion to Suppress (ECF No. 219)

         On 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 Virginia.

         g. Government's Third Supplemental Response to the Motion to Suppress (ECF No. 221)

         During 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 interview.[4]

         h. The Motion Hearing

         During 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.

         i. Sufficiency of Warrant/Leon Good-Faith

         The 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[5]). 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.

         The 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.

         Following 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.

         The 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. Id.

         Defense 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.

         ii. Custodial Interrogation

          The 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.

         Defense 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 convicted. Id.

         iii. Fruit of the poisonous tree

          The 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.

         Defense 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 9:19.

         Defense 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.

         III. ANALYSIS

         a. The Warrant provided mistaken information but is protected by ...


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