UNITED STATES v. BELAYNEH (2023)

ORDER

This matter is before the Court on the Magistrate Judge's Non-Final Report and Recommendation (“R&R”) [Doc. 43], which recommends that Defendant's Motion to Dismiss the Indictment [Doc. 29] be DENIED and that Defendant's Motion to Suppress Search Warrant [Docs. 31, 34] be DENIED. Defendant has filed objections to the R&R [Doc. 49].

I. LEGAL STANDARD

Under 28 U.S.C. § 636(b)(1), the Court reviews the R&R for clear error if no objections are filed by either party within 14 days after service. 28 U.S.C. § 636(b)(1). If a party does file objections, the Court must determine de novo any part of the Magistrate Judge's disposition that is the subject of a proper objection. Id.; Fed. R. Civ. P. 72(b). Since Defendant filed timely objections to the R&R in this case, the Court reviews the challenged portions of the R&R de novo and the remainder of the R&R for clear error.

II. BACKGROUND

The procedural and factual background of this case is set forth in the R&R, and those facts are fully incorporated here by reference. (See Doc. 43).

To summarize, a federal grand jury indicted Mezemr Abebe Belayneh (“Defendant”) on May 26, 2021. Count One charges Defendant with procuring naturalization and citizenship contrary to law, on or about July 18, 2008, in violation of 18 U.S.C. § 1425(a). (Doc. 1 at 3–4). Specifically, Count One alleges that Defendant “did knowingly procure, and attempt to procure, contrary to law, naturalization and documentary and other evidence of naturalization and citizenship, having knowingly made materially false representations on his Form N-400, Application for Naturalization, and in sworn statements to immigration and naturalization officials” on or about July 18, 2008. The indictment lists the materially false representations that Defendant allegedly made in attempting to procure his citizenship, relating to his history in Ethiopia. (Id.) Count Two charges Defendant with knowingly procuring, obtaining, and applying for naturalization and citizenship to which he was not entitled, on or about July 18, 2008, in violation of 18 U.S.C. § 1425(b). (Doc. 1 at 5). Specifically, Count Two alleges that Defendant “gave false testimony for the purpose of obtaining any benefits under Chapter 12 of title 8 of the United States Code,” which made him unable to satisfy the “good moral character” requirement for naturalization under 18 U.S.C. § 1427. (Id.)

As the basis for the Indictment, the government alleges that Defendant unlawfully applied for and procured U.S. citizenship “by lying about and concealing that he committed acts of violence and ordered others under his control to commit acts of violence against political opponents when he lived in Ethiopia” during the Red Terror in the late 1970s. (Doc. 1 at 1). The indictment goes into more specific detail about the alleged acts of violence that support the charges. (Id. at 1–2). The indictment alleges that Defendant entered the United States as a lawful permanent resident on October 3, 2001. On or about July 26, 2007, Defendant submitted an N-400 application for naturalization. (Id. at 2). Defendant interviewed for naturalization and citizenship, under oath, on March 19, 2008, and the government approved his application on the same date. (Id. at 2–3). Defendant became a naturalized citizen of the United States on July 18, 2008. (Id. at 3).

During this process, Defendant affirmed, swore, and certified that all of the information and statements he provided to immigration and naturalization officials were true and correct. (Doc. 1 at 3). The indictment lists information that Defendant allegedly lied about or concealed, under oath, during the immigration and naturalization process that would have precluded him from lawfully obtaining naturalization and citizenship. (Id. at 3–4).

On January 18, 2022, Defendant filed a Motion to Dismiss the Indictment [Doc. 29] on the grounds that the statute of limitations for the indicted offenses had expired before the grand jury returned the indictment on March 26, 2021. In the alternative, Defendant argues that due process blocks his prosecution. Furthermore, Defendant filed a Motion to Suppress Evidence, and subsequently supplemented that motion. [Doc. 31, 34].

After the government's responses and Defendant's replies to these motions, the Magistrate Judge issued a R & R, which recommends that both of Defendant's motions be denied. The R & R included findings that: (1) the government made a timely application for the suspension of the statute of limitations; (2) the statute of limitation was properly tolled; and (3) Defendant has not met his burden of showing actual prejudice for the pre-indictment delay or that the government's delay was a deliberate attempt to gain a tactical advantage. (See Doc. 43).

III. DISCUSSION

Defendant filed seven objections to the Magistrate Judge's R&R. Upon de novo review of the parties arguments and all appropriate matters of record, the Court overrules each objection as set forth below and adopts the Magistrate Judge's findings and recommendations as the Order of the Court.

A. Motion to Dismiss Indictment

1. For purposes of statute of limitations, an alleged act (offense) in Count Two was complete on July 18, 2008, when Defendant procured and obtained naturalization and citizenship.

Defendant contends that Count Two should be dismissed on statute of limitations grounds because “the first act” of applying for naturalization occurred on March 19, 2008, and because 18 U.S.C. § 1425(b) contains no continuing offense language. (Doc. 49 at 3). Specifically, Defendant contends that, for purposes of the statute of limitations, the violation of § 1425(b) was complete upon the “first act” of applying for naturalization, not the acts of procuring or obtaining naturalization which occurred on July 18, 2008. (Id.) Defendant argues that each separate act listed in § 1425(b) is included in one another and that the statute of limitations should not run from the latter of the alleged acts. Rather, he contends that it should run from the “first act,” which would be the application for citizenship and naturalization. (Id.) The Court agrees disagrees.

Defendant's reliance on United States v. Rojas, 718 F.3d 1317, 1320 (11th Cir. 2013), with respect to the “first act” of the offense, is not applicable here because the statute at issue in Rojas, 18 U.S.C. § 1325(b), does not list disjunctive unlawful acts like § 1425(b). The court in Rojas found that “Congress's use of the phrase enters into in the explicit language of the statute – an act that can only occur on the singular date that a marriage takes place” supports the conclusion that the act of marriage fraud under § 1325(b) was not a continuing offense and was complete on the day the defendant entered into marriage for the purpose of evading immigration laws. Id. at 1320 (emphasis added). Here, § 1425(b) is distinguishable because of Congress's explicit use of the disjunctive “or” when listing the various acts that violate the statute.

As the magistrate judge explained in the R & R, a statute creates multiple separate offenses when each offense requires proof of a different element or elements. (See Doc. 43 at 16) (citing Blockburger v. United States, 284 U.S. 299, 303-04, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). Section 1425(b) lists, in the disjunctive, four different acts (offenses) that require different kinds of proof: applying for naturalization or citizenship; procuring naturalization or citizenship; obtaining naturalization or citizenship; or attempting to procure or obtain naturalization or citizenship. 18 U.S.C. § 1425(b). Therefore, the use of the disjunctive in § 1425(b) indicates that the listed acts are separate unlawful offenses that can occur at different times, each requiring different proof, unlike the singular act of entering into a marriage in § 1325(b) that was addressed in Rojas. Contrary to Defendant's contention, the act of applying for citizenship is not the “first act” of a singular offense which violates § 1425(b), but merely one of the separate acts or offenses that § 1425 (b) lists.

Defendant's objection to the magistrate judge's reliance on United States v. Pacchioli, 718 F.3d 1294, 1300 (11th Cir. 2013), is unconvincing. Specifically, Defendant argues that the bribery statute at issue in Pacchioli, 18 U.S.C. § 666(a)(2), is distinguishable from § 1425(b) because that statute “set forth disjunctive unlawful acts that were not necessarily included in one another when alleged together, conjunctively.” (Doc. 49 at 3). He contends that, under§ 1425(b), “there is no circumstance in which a jury could find that [he] ‘procured’ or ‘obtained’ naturalization without first unlawfully applying for it.” (Id.) However, Defendant provides no authority that supports the argument that separate unlawful acts within a statute, each requiring different elements of proof, should be treated conjunctively with one another for statute of limitations purposes. Indeed, when an offense can be established through one of several disjunctive acts and the government charges all of them, the statute of limitations is satisfied if any of the acts occurred within the limitations period. See Pacchioli, 718 F.3d at 1300–01 (holding that because a violation of the disjunctively phrased bribery statute could be proven by giving, offering, or agreeing to give a thing of value to any person, and the government charged all three but only proved the act of giving, the statute of limitations ran from the date of giving the bribe, even though the agreement to the bribe had occurred earlier).

In summary, § 1425(b) is a disjunctive statute which lists separate unlawful acts or offenses relating to naturalization and citizenship, and the government charged Defendant with all of those acts conjunctively. As at least one of the charged acts in violation of § 1425(b) — procuring or obtaining naturalization and citizenship — occurred (was completed) within the ten years preceding the indictment in this case, the indictment is not subject to dismissal on statute of limitations grounds. The Court overrules Defendant's objection on this issue.

2. The Eleventh Circuit interprets 18 U.S.C. § 3292 to have only two substantive requirements.

In suspending or tolling the running of the statute of limitations in this case, the government utilized 18 U.S.C. § 3292, which provides, in pertinent part, that “[u]pon application of the United States, filed before return of an indictment, indicating that evidence of an offense is in a foreign country, the district court before which a grand jury is impaneled to investigate the offense shall suspend the running of the statute of limitations ․” 18 U.S.C. § 3292(a)(1). Based on his interpretation of the statute, Defendant contends that the phrase “the district court before which a grand jury is impaneled to investigate the offense” establishes a substantive consideration or requirement for suspension under § 3292(a)(1). Thus, he contends that the government failed to show that an impaneled grand jury actively investigating the offense in question when it sought the suspension of the running of the statute of limitations in this case rendered the suspension ineffective. In his objection to the R & R, Defendant argues that the Magistrate Judge's reliance on United States v. Broughton, 689 F.3d 1260, 1273 (11th Cir. 2012), essentially “reads out” the statute's textual requirement that a grand jury be impaneled and actively investigating the alleged offense. (See Doc. 49 at 3). The Court is unpersuaded by this argument.

When interpreting § 3292 in Broughton, the Eleventh Circuit expressly found that “a district court's decision to suspend the running of the statute of limitations is limited to two considerations: (1) whether an official request was made; and (2) whether that official request was made for evidence that reasonably appears to be in the country to which the request was made.” Broughton, 689 F.3d at 1273 (emphasis added). According to the Eleventh Circuit, “[i]f both those considerations are met, the statute of limitations ‘shall’ be suspended.” Id. This Court is bound by the Eleventh Circuit's interpretation of the sole considerations for suspension under § 3292. The Eleventh Circuit does not interpret § 3292 to include a third consideration — i.e., whether the government has established that there was an impaneled grand jury actively investigating the offense in question at the time the request was made. In any event, the government's July 18, 2018, application to suspend the running of the statute of limitations clearly states that Defendant was under investigation for unlawful procurement of citizenship in violation of 18 U.S.C. § 1425 and that “[a] grand jury investigation was initiated in the Northern District of Georgia on July 10, 2018.” (See Doc. 29-7 at 2 ¶2). As the Eleventh Circuit does not consider the grand jury impanelment language to be a substantive consideration, the government was not required to assert anything more. Defendant's objection on this issue is overruled.

3. The March 18, 2021, Ethiopian response to the government's request for evidence did not end the period of suspension under § 3292(b).

Section 3292(b) provides that the period of suspension begins on the date on which the official request is made and ends on the date on which the foreign authority takes final action on the request. 18 U.S.C. § 3292(b). In his third objection to the R & R, Defendant objects to the Magistrate Judge's finding that the March 18, 2021, Ethiopian response was not a “final action.” (Doc. 49 at 5–6). For the following reasons, his objection is overruled.

Defendant first argues that the Magistrate Judge erred in holding that there was no “presumption of finality” in the March 18, 2021, Ethiopian response. Defendant provides no controlling authority that creates or supports any “presumption of finality” in every response to a request for foreign evidence, he merely argues that such a presumption exists because the government bears the burden of proving that the limitations period was properly suspended under § 3292. Defendant cites United States v. Trainor, 376 F.3d 1325 (11th Cir. 2004) for his proposition that, because the government bears the burden of proof in seeking to suspend the running of the statute of limitations to request evidence from a foreign country, any response to that request has a “presumption of finality” unless the government proves otherwise. (See Doc. 49 at 5). However, the Eleventh Circuit made no such finding in Trainor. Rather, the issue in Trainor involved the government's burden of proof in connection with obtaining a suspension under § 3292(a)(1).¹ While the government may indeed have the subsequent burden of proving that the foreign country's response to its request for evidence was insufficient when faced with a statute of limitations challenge, nothing in Trainor supports the proposition that every response to a request for evidence has a “presumption of finality.” In any event, the government did provide evidence indicating that Ethiopia did not fully respond to its initial request for evidence. (See Doc. 29-11 at 11 ¶7). Accordingly, the Court finds that Defendant's argument on this issue is without merit.

Next, Defendant argues that the government has not met its burden of proof to overcome the “presumption of finality” of the March 18, 2021, Ethiopian response and, thus, the suspension of the statute of limitations should have ended on that date. (See Doc. 49 at 6). The Court disagrees.

In the sworn declaration attached to the government's second supplement to its application to suspend the running of the statute of limitations, HSI Special Agent Jason Tyler averred that the March 18, 2021, Ethiopian response consisted of 82 pages of documents in the Amharic language, some of which will require translation into English, and that it did not appear that the documents included everything that was requested in the initial request for evidence. (See Doc. 29-11 at 11 ¶7). Defendant argues that, because some of the documents required translation, an inference could be made that Special Agent Tyler was unable to determine whether the response was dispositive of the initial request. Thus, he contends that Special Agent Tyler's averment that the March 18 response was incomplete was unreliable and lacked credibility. (See Doc. 49 at 6). However, because Special Agent Tyler made this statement in the form of a sworn declaration, the Court finds that it has a sufficient indicia of reliability to satisfy the preponderance of the evidence standard. See e.g., Trainor, 376 F.3d at 1332–33 (holding that “the § 3292 preponderance of the evidence requirement is quite broad and the Government may satisfy its burden by including ․ testimony by Government officials, affidavits, declarations, exhibits, or other materials of evidentiary value). Therefore, Defendant's argument on this issue is without merit.

4. The pending supplemental requests for evidence made the March 18, 2021, Ethiopian response irrelevant for the purposes of determining the end of the period of suspension under § 3292(b).

As noted above, the Court concludes that the government met its burden in showing that the March 18 Ethiopian response was not a “final action” regarding the initial request for evidence. Furthermore, it is clear from the record that, at the time of the March 18 Ethiopian response, there were at least two other pending official requests for foreign evidence under § 3292 to which no response had been received — the March 4, 2019, request for evidence from the Republic of Kenya and the March 20, 2019, request for additional evidence from Ethiopia. The supplemental application for suspension based on the additional requests was approved by the District Judge on April 30, 2019. (Docs. 29-9; 29-10; see also Doc. 29-11 at 11 ¶¶8–9). Like the order approving the government's initial application for suspension regarding the initial request for evidence from Ethiopia, the April 30, 2019, order approving the government's supplemental application suspended the running of the statute of limitations for the offense in question from July 2, 2018, until the foreign authorities took final action on the request; but in any event, no later than July 2, 2021.² (See Doc. 29-10). Because the request for evidence from the Republic of Kenya and the additional request for evidence from Ethiopia remained pending after the March 18, 2021, Ethiopian response, the issue of whether the initial Ethiopian response was complete is irrelevant for the purposes of determining the end of the suspension period under § 3292(b).

Nevertheless, Defendant argues that the April 30, 2019, order approving the suspension of the statute of limitations based on the March 4 (Kenya) and March 20 (Ethiopia) requests for evidence was a nullity because the grand jury impaneled at the time of the initial application had presumably expired prior to the government's April 30, 2019, supplemental application. Thus, he contends that the government failed to satisfy the “impaneled grand jury” requirement for suspension under § 3292(a)(1). (Doc. 49 at 6–7). However, the government's April 29, 2019, supplemental application for suspension states that a grand jury investigation had been opened on July 10, 2018, to investigate Defendant and that no indictment has been returned. (See Doc. 29-9 at 2 ¶2). For the reasons stated in Section III. A. 2. of this Order, the Court finds that Defendant's argument on this issue is without merit.

B. Motion to Suppress Evidence

1. Search warrant's list of items to be seized is sufficiently particularized.

In his fifth objection to the R&R, Defendant contends that the list of items to be seized under the search warrant (“Attachment B”) is overbroad and authorizes an unreasonable “all records” search of his home. (Doc. 49 at 7–8). Specifically, he argues that qualifying sought-after evidence such as written correspondence or other documents as being only that which relates to the violation of a particular criminal code section does not obviate the need to particularize the specific evidence to be seized. Defendant further argues that such an “all records” search should be subject to heightened scrutiny where, as here, the target location is his home which includes a home office for his business. (Id.) The Court is unpersuaded by Defendant's arguments.

The Fourth Amendment requires that search warrants “particularly describ[e] the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. This particularity requirement is intended to prevent “general, exploratory rummaging in a person's belongings.” United States v. Wuagneux, 683 F.2d 1343, 1348 (11th Cir. 1982) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). “A description is sufficiently particular when it enables the searcher to reasonably ascertain and identify the things authorized to be seized.” Wuagneux, 683 F.2d at 1348 (citations omitted). While a search warrant must be sufficiently precise so as not to permit a general search, the test is the reasonableness of the description; elaborate specificity is not required. United States v. Lisbon, 835 F. Supp. 2d 1329, 1345 (N.D. Ga. 2011); United States v. Strauss, 678 F.2d 886, 892 (11th Cir. 1982); United States v. Osborne, 630 F.2d 374, 378 (5th Cir. 1980); see also United States v. Betancourt, 734 F.2d 750, 754–55 (11th Cir. 1984) (stating that a warrant's description need not contain elaborate specificity; it is sufficiently particular when it enables the searcher to reasonably ascertain and identify the things authorized to be seized). Indeed, the Eleventh Circuit has acknowledged that “the particularity requirement must be applied with a practical margin of flexibility, depending on the type of property to be seized, and that a description of property will be acceptable if it is as specific as the circumstances and nature of activity under investigation permit.” Wuagneux, 683 F.2d at 1350.

Here, as the R & R correctly points out, Attachment B to the search warrant authorized law enforcement to seize only documents that related to the alleged violations of 18 U.S.C. § 1425(a) and (b). (Doc. 34-1 at 14). Thus, anything that was not relevant to violations of § 1425(a) and (b) could not be seized. Attachment B then provided five illustrative subsections, listing the types of documents that would be relevant: (a) documents and physical objects relating to Defendant's “affiliation and association with” civilian militias, the Derg, Ethiopian political movements, and the Red Terror; (b) documents and physical objects relating to Defendant's identity and life outside of the United States; (c) documents and physical objects related to Defendant's “immigration to, and naturalization in, the United States” and immigration to and from other countries; (d) written correspondence, journal entries, or other writings; and (e) any documents showing that Defendant “had knowledge that he was indicted and convicted, in absentia, of human rights violations” in Ethiopia. (See Doc. 31-2 at 4). In other words, agents could not seize “all records” as Defendant contends; instead, the records had to relate to Defendant's identity, subversive political affiliations, human rights violations in Ethiopia, and his efforts to secure naturalization in the United States.

In challenging the particularity of Attachment B, Defendant focuses on subsection (d) — the subsection authorizing agents to seize “written correspondence, journal entries, and other writings.” He argues that subsection (d) is vague and overbroad and essentially authorizes an unreasonable “all records” search and seizure. However, the fact remains that Attachment B, by its express terms, limits the seizure to only those writings that relate to violations of 18 U.S.C. § 1425(a) and (b). Thus, law enforcement was not authorized to seize all records or writings.

Nevertheless, Defendant argues that Attachment B's “mere reference to suspected violations of § 1425(a) and (b) did not sufficiently particularize the evidence to be seized. The Court disagrees. In Signature Pharmacy, Inc. v. Wright, 438 Fed. Appx. 741 (11th Cir. 2011), the search warrants at issue in that case authorized the seizure of documents, records, bills, logs, and other items that related to violations of certain specific crimes and/or statutes. Id. at 745–46. The Eleventh Circuit held that, “[b]ecause the descriptions in the warrants refer to items that are evidence of a violation of certain statutes ․, the items were described with sufficient particularity to allow ․ a seasoned law enforcement officer [ ] to identify the things to be seized.” Id. at 746. In the instant case, the Court finds that the exact items of written correspondence, journal entries, and other writings to be seized could not have been known at the time the warrant was issued and, because the warrant limited the search to only those items that relate to violations of § 1425(a) and (b), the search warrant could not have been more specific or particularized. See United States v. Santarelli, 778 F.2d 609, 615 (11th Cir. 1985) (search warrant authorizing the seizure of “all property” or records constituting evidence of loansharking was not overbroad because the warrant limited the search and seizure to items that constituted evidence of loansharking, and there was no additional information that would have allowed the warrant applicant to give a more particularized description of the loansharking evidence located in defendant's residence); Betancourt, 734 F.2d at 755 (search warrant authorizing the seizure of “all financial records” and patient records that relate to violations of 21 U.S.C. § 841(a)(1) was not overbroad because it limited the seizure to only those records that are evidence of violations of the statute and the warrant could not have been more specific). Based on the foregoing, the Court finds that Attachment B is sufficiently particularized in accordance with the Fourth Amendment and did not authorize an “all records” seizure. Defendant's argument on this issue is without merit.

2. The was a sufficient nexus to support a finding of probable cause.

In his sixth objection, Defendant argues that the search warrant failed to establish a sufficient probable cause nexus between Defendant's home and the allegations regarding Defendant's past. He argues that the magistrate judge erroneously relied upon the warrant affiant's “training and experience” and misapplied a “common sense” approach in concluding that there was a fair probability that documents and physical evidence showing Defendant's past experiences in Ethiopia, immigration to the United States, and knowledge of his Ethiopian conviction would be found in Defendant's residence. (Doc. 49 at 9–10). The Court rejects these arguments and overrules the objection.

The Supreme Court has recognized that, with respect to searching a particular place, the question of probable cause is a “commonsense, practical question.” Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Based on this principle, the Eleventh Circuit has adopted a totality of the circumstances approach to probable cause as it relates to searching one's residence. See United States v. Kapordelis, 569 F.3d 1291, 1310 (11th Cir. 2009) (“Probable cause to support a search warrant exists when the totality of the circumstances allows the conclusion that ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place’ ”) (citing Illinois v. Gates, 462 U.S. at 238, 103 S.Ct. 2317). This is not a rigid test, as an issuing magistrate judge is permitted to take into account a number of factors in determining whether a sufficient nexus exists between the alleged crime and the defendant's residence to satisfy proximate cause.

Defendant first takes issue with the magistrate judge's reliance on the warrant affiant's training and experience in determining that probable cause existed, but his argument misses the mark. To satisfy the probable cause threshold, the Eleventh Circuit has found that the training and experience of law enforcement, combined with the finding of likelihood that a defendant committed the alleged crime and the probability that the defendant keeps evidence of the crime at his residence, is sufficient. United States v. Jenkins, 901 F.2d 1075, 1081 (11th Cir. 1990). Defendant contends that the R & R's reliance on Jenkins is misplaced because the warrant in that case involved a search of a defendant's home for evidence relating to a bank robbery rather than evidence relating to unlawful procurement of citizenship and naturalization. However, it appears that the magistrate judge cited Jenkins in the R & R merely to illustrate the flexibility and practical application of the probable cause test in our circuit. Additionally, the Eleventh Circuit has consistently held that “a police officer's expectation, based on prior experience and the specific circumstances of the alleged crime, that evidence is likely to be found in a suspect's residence satisfies probable cause.” United States v. Bradley, 644 F.3d 1213, 1263–64 (11th Cir. 2011). Therefore, it was appropriate to consider the affiant's experience and knowledge of the specific circumstances of the crime in determining probable cause.

Defendant also argues that it that there was not a fair probability that the sought-after evidence would be found in his home because “common sense” dictates that “a person would not keep evidence of war crimes and a federal criminal offense inside their home.” (Doc. 49 at 9) (emphasis in original). However, this Court agrees with the magistrate judge's findings in the R & R and likewise concludes that the type of evidence sought — documents and physical items relating to Defendant's identity, past experiences in Ethiopia, and immigration to the United States — is the type of documents and physical items that one could reasonably expect that Defendant would keep in his home. Furthermore, the warrant affiant's explanations as to his and other agents’ experiences only buttressed the nexus between Defendant's home and the evidence sought. (See Doc. 31-1 at 10–12, ¶¶30–32). Given the warrant affiant's training and experience in human rights and war crime violations and cases involving violations of Immigration and Customs laws, as well as his knowledge that suspects often maintain in their homes various items such as documents, mementos, keepsakes, photos, journals, and souvenirs that are evidence of the falsity of the misrepresentations they have made on their immigration paperwork, the Court finds that it was reasonable for the issuing magistrate judge to have concluded that there was a fair probability that such evidence would be found in Defendant's home. See Bradley, 644 F.3d at 1264 (holding that it was not necessary for law enforcement agents to have procured specific evidence that relevant records would certainly be found in defendant's home).

Based on the foregoing, and the due deference that is given to the issuing magistrate judge's probable cause determination, the Court finds that a sufficient nexus exists between the alleged crime and Defendant's residence to satisfy proximate cause for the issuance of the warrant. Defendant's objection regarding this issue is overruled.

3. Good Faith Exception

In his final objection, Defendant takes issue with the magistrate judge's ancillary finding that, even if the search warrant did not establish a sufficient factual nexus between Defendant's home and the evidence sought, the “good faith” exception to the exclusionary rule set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) could still be applied to prevent suppression of the evidence because the officers executing the search could have reasonably assumed the search warrant to be valid. As explained above, however, the affidavit for the search warrant did provide a sufficient nexus between the Defendant's home and the sought-after evidence to establish the requisite probable cause. Therefore, the Court need not consider whether the “good faith” exception would apply in this case. Accordingly, Defendant's objection on this issue is overruled.

IV. CONCLUSION

After reviewing the Non-Final Report and Recommendation [Doc. 43] and Defendant's objections de novo, the Court receives the R & R with approval and ADOPTS its findings and legal conclusions as the Opinion of this Court. Accordingly, IT IS HEREBY ORDERED that Defendant's Motion to Dismiss the Indictment [Doc. 29] is DENIED and Defendant's Motion to Suppress Evidence [Docs. 31, 34] is DENIED.

SO ORDERED, this 10th day of May, 2023.

FOOTNOTES

1.   Specifically, the Eleventh Circuit held that “the Government, when seeking to toll a statute of limitations under § 3292, must provide something with evidentiary value – that is testimony, documents, proffers, and other submissions bearing some indicia of reliability – tending to prove it is reasonably likely that evidence of the charged offenses is in a foreign country.” Trainor, 376 F.3d at 1332.

2.   18 U.S.C. § 3292(c)(1) provides that “[t]he total of all periods of suspension under this section with respect to an offense ․ shall not exceed three years[.]”

WILLIAM M. RAY, II, UNITED STATES DISTRICT JUDGE