United States v. Medina, CASE NO. 15-20424-CR-ALTONAGA
| Decision Date | 15 December 2015 |
| Docket Number | CASE NO. 15-20424-CR-ALTONAGA |
| Citation | 158 F.Supp.3d 1303 |
| Parties | United States of America, Plaintiff, v. Carlos Medina, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Anne McNamara, United States Department of Justice, Washington, DC, for Plaintiff.
CECILIA M. ALTONAGA
THIS CAUSE came before the Court on Defendant, Carlos Medina's (“Medina ['s]”) Motion to Suppress Evidence Obtained as a Result of Unlawful Search of Advanced Medical of Doral and Request for Evidentiary Hearing (“Motion”) [ECF No. 81], filed November 18, 2015. The Court has carefully reviewed the Motion and its exhibits; a Notice of Filing Supplemental Composite Exhibit 2 to Defendant's Motion...[ECF No. 83]; the Government's Opposition to Defendant's Motion...(“Response”) [ECF No. 96], and exhibits [ECF Nos. to 96–4]; Defendant's Reply...[ECF No. 111]; and applicable law. Significantly, Defendant has not provided his own sworn declaration or affidavit. For the reasons explained below, the Motion and request for evidentiary hearing are denied.
On June 9, 2015, a grand jury returned an Indictment [ECF No. 3] charging: Defendants, Medina, Ana Rumbaut (“Rumbaut”), and Sheyla Diaz (“Diaz”), with conspiracy to commit health care fraud and wire fraud in violation of Title 18, United States Code, section 1349
(Count One); all Defendants with substantive health care fraud in violation of 18 U.S.C. section 1347 (Count Two); Medina and Diaz with conspiracy to defraud the United States and to receive health care kickbacks in violation of 18 U.S.C. section 371 (Count Three); and Rumbaut with conspiracy to defraud the United States and pay and receive health care kickbacks (Count Four), and two counts of the payments of kickbacks in connection with a federal health care program in violation of 42 U.S.C. section 1320a–7b(b)(2)(A) (Counts Five and Six). The charges in the Indictment pertain to Medina's conduct as vice president and operator of Doral Community Clinic, Inc. (“Doral Clinic”). (See Indictment ¶ 15).
Following Medina's arrest on June 16, 2015 (see Minute Order [ECF No. 12] ), a magistrate judge set Medina's Bond Conditions (see [ECF No. 35] ) on July 1, 2015 to include home confinement, with the exception of visits pertaining to medical needs or treatment, court appearances, attorney and court-ordered obligations, and religious observances. (See id. ¶ n). Medina was also required, while on bond, not to be employed in the health care field. (See id. ¶ q). All of these restrictions were in place since Medina's June 16 arrest and initial appearance before a different magistrate judge. (See Minute Order).
On September 3, 2015, Government agents, including FBI Special Agent Hector Tobon, debriefed Diaz. (See Mot. 2 (citing FBI-302 Report)). She gave information pertaining to a different company, Advanced Medical of Doral, Inc. (“Advanced Medical”), as well as a log book she said would contain evidence of fraudulent activity. (See id. ). According to Diaz, who was similarly on home confinement and restricted from working in the health care field, the log book was in a white binder at Advanced Medical before her arrest, but she did not know if it was still there. (See id. ). Diaz believed either Medina or the property manager for the building in which Advanced Medical had its office would most likely have the binder. (See id. ).
On September 8, 2015, Agent Tobon interviewed the property manager of the landlord, 9300 Forza Real Estate Holdings, LLC, Georgina Menendez (“Menendez”), who advised him she had been property manager of the building that housed Advanced Medical since July 16, 2015. (See Resp. 4 (citation omitted)). According to Menendez, she was not aware of anyone entering the Advanced Medical premises since the time she became property manager. (See id. ). She told Agent Tobon she had already requested a locksmith change the Advanced Medical suite's locks because the tenant had not paid rent in two to three months and she needed to access the office space. (See id. 5). She further stated a locksmith was on the way at the time of Agent Tobon's arrival. (See id. ). Menendez advised she had previously sent a letter requesting payment of overdue rent to the tenant but received no response. (See id. ).
Menendez gave Agent Tobon a copy of the Advanced Medical May 1, 2014 lease agreement (“2014 Lease”), which showed Yurelis Valeron as president of the tenant, Advanced Medical, and Medina's signature as witness. . The Advanced Medical office was located in a commercial building located at 9300 NW 25 Street in Miami, and occupied 1,000 square feet in suite number 209. (See 2014 Lease 1). The Government highlights the following “key terms” of the 2014 Lease: the lease is for one year; the tenant agrees not to use or permit use of the premises for any illegal purpose; in the event of non-payment of rent, the landlord is entitled to exercise all rights and remedies provided or as are available at law or in equity; 13 non-exhaustive categories of events of default include the tenant failing to pay rent when due, and if tenant fails to perform any obligation more than two times within a 12-month period, including the payment of rent, the third offense is a non-curable event of default; the tenant ceasing to do business in or abandoning a substantial portion of the premises is an event of default; upon the occurrence of any of the events of default, the landlord can, without notice and without demand for possession, terminate the lease and terminate the tenant's right to occupy and reenter and take possession of the premises. (See Resp. 5–6 (citing relevant portions of 2014 Lease)).
Agent Tobon asked Menendez permission to enter the Advanced Medical offices and examine its contents. (See id. 6). She consented. (See id. ). Menendez entered Suite 209 with Agent Tobon, and inside he observed a white binder that appeared to contain a list of patients and requested permission of Menendez to copy it. (See id. ). She again consented. (See id. ). Agent Tobon also observed materials that appeared to be patient files and other documents. (See id. ). It is unclear where the white binder or patient files were located within the 1,000-square-foot office, if the suite was a single area or separated into smaller offices, and if any of the items observed and copied came from any individual office such as an office perhaps designated for Medina.
On September 16, 2015, Agent Tobon submitted his Affidavit in Support of An Application for a Search Warrant (“Tobon Affidavit”) [ECF No. 96-1]1 to Magistrate Judge Andrea Simonton, requesting a warrant to search the Advanced Medical office. In the Affidavit, he represented Medina was vice president and operator of Doral Clinic; and officer or director, owner or operator, and registered agent of Advanced Medical. (See id. ¶ 10). The Affidavit states Medina opened Advanced Medical one floor above the offices of Doral Clinic, and later Doral Clinic moved its operations to the Advanced Medical offices. . After Agent Tobon included additional information upon questioning, Judge Simonton approved the search warrant, authorizing a search of Advanced Medical and seizure of items found inside. (See Resp. 6 (citation omitted)).
Agents conducted the search the same day, taking 19 boxes of evidence and five computer processing units. (See id. ). Again, it is unclear from the information supplied what areas of the 1,000 square foot suite were searched; if any areas were separated by partitions or interior offices; whether any of the interior office was Medina's particular office; and where the documents and items seized were taken from. The Government has not supplied a completed inventory of the property taken. (See Search and Seizure Warrant [ECF No. 96-1] 2). Among the items seized is a May 1, 2015 lease agreement for Advanced Medical (“2015 Lease”), containing many of the same key terms summarized above, as well as a page missing from the 2014 Lease that reads in part, “[i]n the event Landlord elects to re-enter or take possession of the Premises after Tenant's default, Tenant hereby waives notice of such re-entry or repossession.” (2015 Lease [ECF No. 96-3] ¶ 24(b) (alteration added)).
On October 23, 2015, a grand jury returned a Superseding Indictment [ECF No. 66], charging Defendants with violations of 18 U.S.C. sections 1349
, 1347, and 371 ; and 42 U.S.C. section 1320a-7b(b)(2)(A). The Superseding Indictment includes allegations relating to conduct at Doral Clinic and Advanced Medical, and modifies the timeframe of certain allegations. Three new counts of substantive health care fraud against all Defendants are included, while the substantive health care fraud count of the original Indictment is removed. Diaz pled guilty to Count One of the Superseding Indictment on October 27, 2015 (see [ECF Nos. 70–71] ), while Rumbaut and Medina are scheduled for trial on January 11, 2016 (see [ECF No. 68] ).
In the Motion, Medina argues: (1) the initial consent search of Advanced Medical was unlawful; (2) without details obtained from the consent search, the Tobon Affidavit fails to provide an independent source of probable cause; (3) the Court should hold a Franks2
hearing; and (4) all evidence obtained as a result of the consent search and the search conducted pursuant to the warrant should be suppressed as fruits of the poisonous tree. As the Court disagrees with Medina's first argument, and agrees with the Government that Medina has not shown he possessed the requisite expectation of privacy, the Court does not reach the remaining contentions.
Under the Fourth Amendment, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause....” U.S. Const. amend. ...
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