United States v. Suong

• Decision Date: 30 September 2022
• Docket Number: CRIMINAL 21-10243-GAO
• Parties: UNITED STATES OF AMERICA, v. BARNDOL SUONG, Defendant.
• Court: U.S. District Court — District of Massachusetts

UNITED STATES OF AMERICA,
v.
BARNDOL SUONG, Defendant.

CRIMINAL No. 21-10243-GAO

United States District Court, D. Massachusetts

September 30, 2022

OPINION AND ORDER

GEORGE A. O'TOOLE, JR. UNITED STATES DISTRICT JUDGE

The defendant, Barndol Suong, stands indicted on a single charge of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). The charge arises out of law enforcement's discovery of a firearm and ammunition during the execution of a search warrant at the defendant's residence. Because the defendant has a criminal record that includes at least one prior felony conviction, his knowing possession of a firearm and ammunition would be unlawful. The defendant now moves to suppress the seized evidence and all fruits derived from the search on the basis that the warrant application failed to establish probable cause to believe that evidence of criminal activity was likely to be found at his residence at the time the warrant was executed.

I. Background

A. Warrant Application and Affidavit

On June 9, 2021, Federal Bureau of Investigations Special Agent Matthew R. Zaremba submitted an affidavit in support of an application for a warrant to search the defendant's residence at 71 Corbett Street in Lowell, Massachusetts, attesting that based on an investigation that began

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in August 2018, there was probable cause to believe that the residence contained evidence of a conspiracy with others, including Sarath Yut and Savoeurn Choun, to possess with intent to distribute controlled substances in violation of 21 U.S.C. § 846 and a conspiracy to launder drug proceeds in violation of 18 U.S.C. § 1956(h). The warrant application did not specifically assert probable cause to believe a firearm would be found in the intended search.

According to his affidavit, Zaremba has been a special agent with the Federal Bureau of Investigation since 2006. At the time of the warrant application, he was assigned to work on counterterrorism and criminal matters. He received specialized training regarding the activities of narcotics traffickers, including the methods used to package, store, and distribute narcotics, as well as the methods used by narcotics traffickers to conceal and launder the proceeds of narcotics trafficking activities.

In August 2018, the FBI, Lowell Resident Agency, and the Lowell Police Department began investigating the One Family Clique (“OFC”), an alliance of local gangs based in Lowell. OFC is an association of primarily Asian gangs founded by Sarath Yut. The OFC engages in drug and firearm trafficking, robbery, and acts of violence against rival gangs.

Specifically, the affidavit asserted that Yut had sources of supply for cocaine and methamphetamine in California and regularly utilized the United States Postal Service (“USPS”) to facilitate the transportation of drugs and payments for them. According to the affidavit, between January 2020 and August 2020, Yut mailed at least twelve parcels to the address “1202 Camino del mar, Del Mar, CA 92014” and thirty-five parcels to other locations. (Aff. of James B. Krasnoo, Esq. in Supp. of Def. Barndol Suong's Mot. to Suppress, Ex. A at ¶ 22 (dkt. no. 42-1).)

Agents believed the mailings included bulk cash for the purchase of illegal narcotics. The parcels shared certain characteristics consistent with packages that experience had shown

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contained illegal controlled substances or drug proceeds, such as being addressed to a known narcotic source city, handwritten address information, cash payments for shipping costs, and addresses from or to an individual or entity that did not actually exist at the addresses used on the shipping labels.

The affidavit described a controlled buy and subsequent execution of a sneak and peek warrant on a parcel as an example of Yut's utilization of the USPS to transport payments for illicit narcotics and/or proceeds. On February 24, 2020, agents engaged in a controlled purchase of cocaine from an individual identified as Peouveasnah Pin. The next day, Pin entered a residence carrying a white envelope resembling the one given to him by the undercover agent during the controlled buy about half an hour after Yut was observed entering the same building carrying a brown package. On March 2, 2020, Yut mailed a package under the alias “Christian Seng” to “Justin Lane, 1202 Camino del mar, suite b, Del Mar, CA 92014.” (Id. at ¶ 20.) The United States Postal Inspection Services (“USPIS”) intercepted the package, and after securing a search warrant, opened the package and discovered $54,000 in United States currency with serial numbers matching the official agency funds the undercover agent utilized during the controlled purchase from Pin on February 24th.

The affidavit next described the travel of a particular mailed parcel that was suspected to contain drug proceeds that occurred about eight months later. On November 3, 2020, Yut left a “known drug processing and distribution location” with two large boxes. (Id. at ¶ 23 n.11.) That same day, Yut mailed a brown box, Parcel 53523 (based upon the long identification number assigned by USPS), with a mailing label identifying the sender as “C. PYNE, 58 Corbett St., Lowell, MA 01851” and the recipient as “Justin LANE, 1202 Camino del Mar, Del Mar, CA 92014.”

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(Id. at ¶ 24.) Although those were actual addresses, neither was associated with actual persons named Pyne or Lane.

The USPS did not deliver Parcel 53523 because the designated location was vacant. USPIS San Diego secured the parcel, pending anticipated inquiries by the intended recipient. Multiple IP addresses thereafter tracked Parcel 53523. A telephone number associated with Suong, 978-9958091 (“Phone 8091”), tracked Parcel 53523 online twice on November 9, 2020. That same day, a USPS.com account was activated using a telephone number associated with Yut, 978-996-3292 (“Phone 3292”), to track Parcel 53523. Special Agent Zaremba stated in the affidavit that he “believe[d] that SUONG was interested on YUT's behalf with what happened to the package and was likely attempting to aid YUT in its retrieval.” (Id. at ¶ 39.)

The USPS did not receive any inquiries about the parcel and therefore USPIS San Diego returned it to Massachusetts on November 12. USPS tried to deliver the parcel to 58 Corbett Street on November 16, but the woman who answered the door professed to know nothing about the parcel, and accordingly the carrier returned it to the USPS Billerica Destination Delivery Unit (“DDU”).

That same day, a person identifying himself as Sarath Yut called from Phone 3292 to inquire about Parcel 53523. He said that his friend, who lives at 71 Corbett Street, had mailed Parcel 53523 but mistakenly listed the return address as 58 Corbett Street.^[1] He reported that C. Pyne was the friend who mailed the package. Special Agent Zaremba understood the story to be false because video footage showed Yut mailing the package. Later that day, Yut called again and

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clarified that the listed sender name of C. Pyne was actually a company acronym. The caller asked for Parcel 53523 to be transferred to the Lowell Post Office.

On November 18, Yut and an unidentified woman arrived at the Billerica DDU to inquire about Parcel 53523. They were advised that it had been sent to the Lowell Post Office as requested. Yut said he would retrieve it the next day.

On November 19, two persons arrived at the Lowell Post Office and inquired about Parcel 53523. They were identified by documentation as Yut and Savoeurn Choun, who lived at 77 Corbett Street, Lowell, Massachusetts.^[2] Yut repeated the same story regarding his friend putting the incorrect return address on the parcel, but this time stated that the listed sender name was a member of his “car crew.” (Id. at ¶ 35.) Special Agent Zaremba again understood that the various inconsistent assertions were “all false.” (Id.) The next day, agents confirmed that Yut and Choun had actually picked up the parcel.

The parcel apparently was never opened by the USPIS and the contents were not confirmed. Special Agent Zaremba stated that he believed that the parcel “likely contained drug proceeds, because it fit the pattern of using the mail and using false names; because YUT, who was listed as neither sender nor recipient, (and others) tracked it carefully, . . .; and because YUT and others used a false story in their efforts to retrieve the package, which they likely would not have done with a non-contraband package.” (Id. at ¶ 36.)

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Zaremba's affidavit also described the date, time, and length of various communications between Phone 8091 (Suong's phone) and Phone 3292 (Yut's phone). It stated...