United States v. Rivera-Banchs

• Decision Date: 22 December 2021
• Docket Number: 20-CR-6046-EAW-MJP-1
• Parties: UNITED STATES OF AMERICA, v. JOHN RIVERA-BANCHS, Defendant.
• Court: U.S. District Court — Western District of New York

UNITED STATES OF AMERICA,
v.
JOHN RIVERA-BANCHS, Defendant.

No. 20-CR-6046-EAW-MJP-1

United States District Court, W.D. New York

December 22, 2021

APPEARANCES

For the United States: Everardo Rodriguez, A.U.S.A.

United States Attorney's Office

For the Defendant: John Rivera-Banchs pro se

REPORT AND RECOMMENDATION AND DECISION AND ORDER

MARK W. PEDERSEN, UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

INTRODUCTION

Pedersen, M.J. This case is before the undersigned on a supplemental omnibus motion filed by pro se defendant John Rivera-Banchs (hereinafter "Defendant") pursuant to Federal Rules of Criminal Procedure 12(b) and 47, and the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution. (Not. of Mot., Aug. 26, 2021. ECF No. 171.) Defendant's motion seeks the following:

(1) Suppression of the search warrants

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(2) Suppression of confidential source testimony based on a violation of 18 U.S.C. § 201(c)(2)

(3) Suppression of evidence based on the reliability of the confidential informant

(4) Suppression of the wiretap warrants and challenging DEA Special Agent Sabatino Smith's affidavit in support of the wiretap warrants:

(5) Suppression of evidence from the warrantless search of Target Telephone 1 in violation of the Fourth Amendment;

(6) Requesting a Franks hearing; and

(7) Seeking severance.

For the reasons set forth below, the undersigned recommends that the District Court deny those aspects of Defendant's motion listed in numbers (1) through (5), above. Further, the undersigned denies Defendant's request for a Franks hearing and that part of his motion seeking severance.

PROCEDURAL BACKGROUND

This case began with a criminal complaint filed on February 20, 2020, (ECF No. 1) alleging Defendant violated 21 U.S.C. §§ 841(a)(1). 841(b)(1)(A). and 846, between about 2016 and 2020, by possessing, with the intent to distribute, and distributing, five kilograms or more of cocaino, a Schedule II controlled substance, and conspiring with others to do the same. On March 19, 2020, the Grand Jury indicted Defendant and co-defendant Richard Carrion on one count of narcotics conspiracy in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(A), all in violation of Title 21, United States Code, Section 846. (Sealed

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Indict., ECF No. 8: Redacted Indict., Mar. 26. 2020, ECF No. 11.) On March 25. 2021, the Grand Jury issued a Superseding Indictment ("Indictment") against Defendant, Mr. Carrion, and Defendant's wife, Evelyn Banchs, in which it charged Defendant with 7 counts of distribution of cocaine in violation of Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(B), and 841(b)(1)(C), and one count of conspiracy to commit money laundering in violation of Title 18, United States Code, Section 1956(a)(1)(B)(i). (Indict. ECF No. 119.)

Defendant filed his original omnibus motion on July 20. 2020, (Def.'s Omnibus Mot., ECF No. 37), and the undersigned issued an Omnibus Order (ECF No. 64) and a Report and Recommendation regarding the motion on October 8, 2020. (R&R, ECF No. 65). The Honorable Elizabeth A. Wolford adopted the Report and Recommendation on February 2, 2021. (D&O, ECF No. 96.)

STANDARD OF LAW

The Honorable Elizabeth A. Wolford referred this matter to the undersigned to address "[a]ll pre-trial matters . . . including all pre-trial matters that a Magistrate Judge may hear and determine pursuant to 28 U.S.C. Section 636(b)(1)(A), and those which a Magistrate Judge may hear and thereafter file a report and recommendation for disposition pursuant to Section 6360>)(1)(B). All procedural aspects of matters properly before the Magistrate Judge under this Order, including scheduling and the filing of briefs or other supporting material, shall be determined by the Magistrate Judge." (Text Order of Referral. ECF No. 12.)

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DISCUSSION

Findings of Fact Regarding Defendant's Motion Challenging the Search Warrants.

Defendant seeks suppression of the search warrants on various grounds, including that DEA Special Agent Sabatino Smith's affidavit in support of the application for the search warrants contained false and/or incorrect information. (Def.'s Aff. at 26-34, Aug. 30, 2021, ECF No. 171; Def.'s Reply Aff. at 16-18, Oct. 12, 2021, ECF No. 181.) Defendant also seeks to suppress the search warrants on the basis that information regarding the Chevrolet S-10 contained in Agent Smith's affidavit (ECF No. 1) and the application for the search warrant (Smith's Search Warrant Appl., ECF No. 1 in case number 20-MJ-531-MJP) is incorrect, rendering the warrant for the vehicle defective. (Def.s Aff. at 29, ECF No. 171.)

Specifically, Defendant asserts that Agent Smith's affidavit provides: "The automobile for which the warrant is sought is Rivera-Banchs [sic] vehicle, a 2003 tan Chevrolet S-10 bearing New York State Registration Number HJA-4438 with Vin [sic] number of 1GCCS14H438204867 (Vehicle 1).' (Id. at 29 (emphasis in original); see also Smith Aff. at ¶ 3, ECF No. 1.). Defendant contends that this information is incorrect because the vehicle belonged to his wife, Evelyn Banchs, and the vehicle is gray, not tan. (Id. at 29 & Ex. C.) According to the Certificate of Title, the above VIN number. 1GCCS14H438204867, is correct. (Id. at Ex. C.) Defendant asserts that Agent Smith later referred to a different VIN number for the vehicle in his affidavit (id. at 29) describing it as follows:

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VEHICLE 1 is a 2003 tan Chevrolet S-10 bearing New York State Registration number HJA-4438 with VIN number of 1GKFK668X7J267207. registered to Evelyn Banchs, using PO Box 17681, Rochester, New York 14617. The investigative team has determined through physical surveillance that RIVERA-BANCHS regularly operates this vehicle. Specifically, RIVERA-BANCHS has been observed operating this vehicle on numerous occasions during the investigation and Vehicle 1 has been observed parked at Premises 1 and 2 on a regular basis, the most recent occasion being February 16, 2020, for Premise 2 and February 18, 2020) for Premise 1.

(Smith Aff. at 36-37, ¶ 82, ECF No. 1.)

In addition, Defendant indicates that Agent Smith's application for a search warrant in case number 20-MJ-531-MJP is inconsistent in that the first page lists two different addresses for the location of the Chevrolet S-10 and neither of them is correct. The description contained in the caption of the warrant application describing the vehicle to be searched reads as follows: A 2003 CHEVROLET S-10 BEARING NEW YORK REGISTRATION NUMBER HJA-4438 WITH VIN NUMBER 1GCCS14H438204867 (VEHICILE 1)3 [sic] Somerset Drive, Elmira, New York. (Smith's Search Warrant Appl. at 1, ECF No. 1 in case number 20-MJ-531-MJP.) Lower down on the same page a description of the vehicle reads as follows: A 2003 TAN CHEVROLET S-10 BEARING NEW YORK REGISTRATION NUMBER HJA-4438 WITH VIN NUMBER 1GCCS14H438204867 (Vehicle l)at [sic] 23 Somerset Drive, Elmira, New York. (Id.) Defendant contends that the warrant is defective because the vehicle "is registered to a P.O. Box in Rochester NY and not in Elmira NY." (Def.'s Aff. at 29, ECF No. 171.)

Notably, and not mentioned by Defendant, page 9 of the application, labeled "Attachment A, Description of Vehicle 1," provides as follows: VEHICLE 1 is a tan

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Chevrolet S-10 bearing New York State Registration number HJA-4438 with VIN number of 1GKFK668X7J267207, registered to Evelyn Banchs, using PO Box 17681, Rochester, New York 14617..[sic]. (Smith's Search Warrant Appl. at 9, ECF No. 1 in case number 20-MJ-531-MJP.)

Defendant has sought suppression of the search warrants in two prior motions. (Def.'s Omnibus Mot. at 6, ECF No. 37 and Def.'s Aff. in Support of Omnibus Mot., Oct. 1. 2020, ECF No. 61.) The undersigned discussed this issue in the Report and Recommendation and recommended that the District Court deny Defendant's suppression motion. (R&R at 5-6, ECF No. 65.) Thereafter, Judge Wolford adopted the undersigned's recommendation that Defendant's challenges to the search warrant be denied. (D&O at 4-9, ECF No. 96.) Judge Wolford specifically found that Agent Smith's affidavit "was detailed and more than adequately established probable cause to believe that Defendant was involved in drug trafficking of cocaine, and that evidence of those crimes would be located at Premises 1-6 and Vehicle 1." (Id. at 8.)

Legal Conclusions Regarding Defendant's Motion Challenging the Search Warrants.

A false statement is material when it is "necessary to the finding of probable cause." Golino v. City of New Haven, 950 F.2d 864, 870 (2d Cir. 1991) (quoting Franks v. Delaware, 438 U.S. 154, 156 (1978)), cert, denied sub nom., Lillis v. Golino, 505 U.S. 1221 (1992). "Under the so-called 'corrected affidavits doctrine' courts look to the hypothetical contents of a 'correct' application to determine whether a proper warrant application, based on existing facts known to the applicant, would still have been sufficient to support arguable probable cause to make the search as a matter of law."

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Rivera v. City of Rochester, No. 09-CV-6621-FPG, 2015 WL 409812, at *4 (W.D.N.Y. Jan. 29, 2015). "If the corrected affidavit supports probable cause, the inaccuracies were not material to the probable cause determination[.]" United States v. Canfield. 212 F.3d 713, 718 (2d Cir. 2000). "The ultimate inquiry is whether, after putting aside erroneous information and material omissions, there remains a residue of independent and lawful information sufficient to support probable cause." Id. (quotations omitted). Further, it is insufficient for a plaintiff to allege that there were errors in the affidavit, as "misstatements or omissions caused by 'negligence or innocent mistake[s]'" do not establish falsity or reckless disregard. United States v. Rajaratnam, 719 F.3d 139, 153 (2d Cir. 2013), cert, denied, 573...