U.S. v. Cohan

• Decision Date: 24 June 2009
• Docket Number: Case No. 07-CR-841 (FB).
• Parties: UNITED STATES of America v. Barry COHAN, Defendant.
• Court: U.S. District Court — Eastern District of New York

628 F.Supp.2d 355

UNITED STATES of America v. Barry COHAN, Defendant.

Case No. 07-CR-841 (FB).

United States District Court, E.D. New York.

June 24, 2009.

COPYRIGHT MATERIAL OMITTED

Charles Steven Kleinberg, Esq., Daniel D. Brownell, Esq., Richard T. Faughnan, Esq., United States Attorney's Office, Brooklyn, NY, for the United States.

John N. Tasolides, Esq., Law Offices of John N. Tasolides, Syosset, NY, Ronald G. Russo, Esq., Herzfeld & Rubin, P.C., New York, NY, for the Defendant.

OPINION

FREDERIC BLOCK, Senior District Judge.

Defendant Barry Cohan ("Cohan") has moved pursuant to Federal Rule of Criminal Procedure 41(h) to suppress the fruits of the search of his dental office on the ground that the warrant authorizing that search was insufficiently specific. On June 2, 2009, the Court denied the motion from the bench, stating that a written opinion would follow. The Court writes to explain the reasoning behind its decision, noting that although suppression is unwarranted in this case, (1) the underlying affidavit must be attached to the warrant and specifically incorporated by reference if it is needed to satisfy the particularity prong of the Fourth Amendment, and (2) the law is unclear as to when, if at all, the failure of a warrant to specify a time frame for the seizure of business records would violate the Fourth Amendment's overbreadth prong.

BACKGROUND

I. The Charges Against Cohan

On November 16, 2007, Cohan, a dentist, was indicted on one count of health care fraud and one count of false statements relating to health care matters. Two superseding indictments added a second count of health care fraud, a second count of false statements relating to health care matters, and two counts of aggravated identity theft. The charges stemmed from Cohan's allegedly fraudulent billing practices in connection with certain patients who were employees of the Port Authority of New York and New Jersey ("PA"). These alleged practices included billing the PA insurance plan for services not actually rendered, billing the PA plan in the name of another dentist, and billing the PA plan at inflated rates.¹

II. The Search at Issue

Much of the Government's evidence was seized during a search of Cohan's dental office. The search was timely conducted pursuant to a warrant issued on February 27, 2006 by Magistrate Judge Cheryl L. Pollak ("the warrant"). The relevant portion of the warrant reads as follows:

Affidavit(s) having been made before me by James W. Diercksen[,] who has reason to believe that [in Cohan's office] there is now concealed a certain person or property, namely items listed in the attached Rider[,] I am satisfied that the affidavit(s) and any recorded testimony establish probable cause ... for the issuance of this warrant.²

Attached to the warrant was a rider titled "Items to be Seized," which read, in relevant part, as follows:

The following items and records, however stored, whether electronically or in paper form, and wherever situated or stored, whether contained in locked or unlocked cabinets, safes, desks, closets or other containers [in Cohan's office]:

(1) files reflecting the course of treatment for each patient of Doctor Barry Cohan, the x-rays and other records of examinations for each patient, payment and other financial records, including bank records and state and federal tax returns, claims and other insurance documents, appointment calenders [sic], correspondence, and reports of specialists treating the dentist's patients;

(2) any items and/or materials capable of storing the data and information described [above] in an electronic format, including [computer files, hardware, etc.].

The warrant was issued on the basis of a supporting affidavit ("the affidavit") of Port Authority Officer James W. Diercksen ("Diercksen"), which described in detail the Government's theory of fraud and the grounds for probable cause. At oral argument, the Government acknowledged that Diercksen was responsible for conducting the search.

In particular, the affidavit explained that until July 2004, the PA would only pay dentists a fixed "reasonable and customary" fee for dental procedures performed on PA patients. In July 2004, the PA had removed the "reasonable and customary" cap and agreed to reimburse 80% of a dentist's fee, however high—provided that the dentist collected the remaining 20% from the patient as a co-payment. This co-payment requirement, the affidavit noted, was the sole check on Cohan's fees after July 2004: if Cohan's fees became outrageously high, his patients would presumably balk at paying 20% of those drastically inflated fees; on the other hand, if Cohan did not collect the co-payment, he would be able to set his fees arbitrarily high and simply collect 80% of that amount from the PA.

To prevent such tactics, the PA's insurance claim forms required dentists to certify that their fees included the 20% co-payment, and that those fees were "the actual fees [they] ha[d] charged and intend[ed] to collect. . . ." Aff. ¶ 5. The affidavit then alleged, based upon records in the Government's possession, that Cohan "rarely, if ever, ... charge[d] his [PA] patients the 20% co-payment" for services he performed on them, id. ¶ 23, even though he certified on his claim forms that he intended to do so. It also stated that Cohan had informed a confidential source who was a PA employee "that [he] need not pay any co-payment for [his] treatment." Id.

The affidavit further alleged, also based upon records in the Government's possession, that Cohan had submitted claims for performing certain expensive services on PA patients far more frequently than he had submitted claims for performing those same services on non-PA patients, and that "the unusual frequency of certain types of procedures among [PA] employees suggests that C[ohan] did not in fact perform these procedures." Id. ¶ 22. Lastly, the affidavit noted that Cohan had a prior history of fraud: the New York State Board of Dentistry in 1998 had found Cohan guilty of "practicing the profession of dentistry fraudulently" in that, "on at least four separate occasions between February 1990 and July 1992, . . . C[ohan] had submitted false claim forms . . . for reimbursement." Id. ¶ 24.

Nothing in the record indicates that the affidavit was affixed to the warrant.

DISCUSSION

Cohan objects to what he terms "the extraordinary breadth of this warrant," arguing that its description authorized the seizure from Cohan's office of "every document of every kind, from the beginning of time to the present." Cohan's Letter Mot. of May 28, 2009 at 2. He claims that "[b]y listing every type of record that could conceivably be found in an office, . . . the government created a de facto general warrant." Id. Cohan asserts that it "would have been possible for the government to limit [the warrant's description] . . . by . . . seeking to obtain records only of PA patients, or seeking records only for a finite time frame." Id. at 3. The Government, in response, argues that the warrant was sufficient on its face to pass muster under the Fourth Amendment, and that, in any event, the detailed allegations in the underlying affidavit save the warrant from any constitutional infirmity. Neither party mentions the "good-faith" exception to the exclusionary rule.

The Fourth Amendment's Warrants Clause imposes two central requirements on search warrants: (1) that "no Warrants shall issue, but upon probable cause," and (2) that search warrants must "particularly describ[e] ... the ... things to be seized." A warrant, therefore, can be unconstitutionally infirm in two conceptually distinct but related ways: either by seeking specific material as to which no probable cause exists, or by giving so vague a description of the material sought as to impose no meaningful boundaries. See United States v. Hill, 459 F.3d 966, 973 (9th Cir.2006) (Fourth Amendment "[s]pecificity has two aspects: particularity and breadth. Particularity is the requirement that the warrant must clearly state what is sought. Breadth deals with the requirement that the scope of the warrant be limited by the probable cause on which the warrant is based."); see also United States v. Costin, No. CRIM 3:05-CR-38 JCH, 2006 WL 2522377, at *7 (D.Conn. July 31, 2006) ("The defendants' argument that the warrants . . . were unconstitutional may be considered in two separate but related parts: first, . . . that they were overbroad because they authorized the seizure of more property than that for which the [affidavit] had shown probable cause; and second, . . . that they included no meaningful limitation at all. . . .").³

I. Particularity

The Fourth Amendment's particularity requirement targets "the specific evil [of] the `general warrant' abhorred by the colonists." Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). In other words, it is meant to prevent the "general, exploratory rummaging in a person's belongings." Id. The Supreme Court has stated that under a properly particular warrant, "[a]s to what is to be taken, nothing is left to the discretion of the officer executing the warrant," Marron v. United States, 275 U.S. 192, 196, 48 S.Ct. 74, 72 L.Ed. 231 (1927), although the Second Circuit has noted that the apparent "no discretion" standard which the Supreme Court enunciated over eighty years ago in Marron "has not always been applied literally." United States v. Young, 745 F.2d 733, 759 (2d Cir.1984); see also United States v. Buck, 813 F.2d 588, 590 (2d Cir.1987). Rather, under the law as applied in this circuit, a warrant is sufficiently particular if it "enable[s] the executing officer to ascertain and identify with reasonable certainty those items that the magistrate has authorized him to seize." United States v. George, 975 F.2d 72, 75 (2d Cir.1992) (emphasis added); see also United States v. Liu, 239 F.3d 138, 140 (2d Cir.2000) ("A warrant must be sufficiently...