United States v. Belayneh

Full title: UNITED STATES of America, Plaintiff, v. Mezemr Abebe BELAYNEH, Defendant.

Court: United States District Court, N.D. Georgia, Atlanta Division

Date published: May 10, 2023

672 F. Supp. 3d 1317 (N.D. Ga. 2023)

Opinion

CRIMINAL ACTION FILE NO.: 1:21-cr-00213-WMR-JEM-1

2023-05-10

UNITED STATES of America, Plaintiff, v. Mezemr Abebe BELAYNEH, Defendant.

Jamie Perry, United States Department of Justice, Criminal Division, Washington, DC, Patrick Jasperse, Human Rights and Special Prosecutions, Washington, DC, Tal C. Chaiken, Jessica Celina Morris, Office of the United States Attorney, Atlanta, GA, for Plaintiff. Steven Paul Berne, Law Offices of Steven Berne, Atlanta, GA, for Defendant.

WILLIAM M. RAY, II, UNITED STATES DISTRICT JUDGE

Jamie Perry, United States Department of Justice, Criminal Division, Washington, DC, Patrick Jasperse, Human Rights and Special Prosecutions, Washington, DC, Tal C. Chaiken, Jessica Celina Morris, Office of the United States Attorney, Atlanta, GA, for Plaintiff. Steven Paul Berne, Law Offices of Steven Berne, Atlanta, GA, for Defendant. ORDER WILLIAM M. RAY, II, UNITED STATES DISTRICT JUDGE

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.

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.

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).

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[.]"

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.

UNITED STATES MAGISTRATE JUDGE'S NON-FINAL REPORT AND RECOMMENDATION

J. ELIZABETH McBATH, UNITED STATES MAGISTRATE JUDGE

Pending before the Court is Defendant's Motion to Dismiss the Indictment, (Doc. 29), and Motion to Suppress Search Warrant, (Docs. 31, 34). With respect to the Motion to Dismiss the Indictment, for the reasons discussed below, the Court finds that: (1) the government's first application for suspension of the statute of limitations, which was filed before July 18, 2018, was timely; (2) the statute of limitations was properly tolled; and (3) Defendant has not met his burden to show actual prejudice from the pre-indictment delay, nor that the government's delay was a deliberate attempt to gain a tactical advantage. Accordingly, the Court RECOMMENDS that Defendant's Motion to Dismiss the Indictment, (Doc. 29), be DENIED.

With respect to the Motion to Suppress Search Warrant, for the reasons discussed below, the Court finds that the search warrant was sufficiently particularized and established a probable cause nexus between Defendant's home and the records sought. Thus, the Court RECOMMENDS that Defendant's Motion to Suppress Search Warrant, (Docs. 31, 34), be DENIED.

I. PROCEDURAL HISTORY

On May 26, 2021, a federal grand jury sitting in the Northern District of Georgia returned a two-count indictment against Defendant, charging him in count one with procuring naturalization and citizenship contrary to law, on or about July 18, 2008, in violation of 18 U.S.C. § 1425(a); and in count two with procuring 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).

Defendant filed a motion to dismiss the indictment on January 18, 2022, arguing that the statute of limitations for the indicted offenses expired before the return of the indictment on May 26, 2021; and alternatively, that due process bars his prosecution. (Doc. 29). The government filed a response in opposition to the motion on February 18, 2022, (Doc. 36), and Defendant filed a reply on April 1, 2022. (Doc. 39).

Defendant also filed a motion to suppress evidence, and subsequently supplemented that motion, (Docs. 31, 34), the government responded on March 1, 2022, (Doc. 38), and Defendant replied on April 1, 2022, (Doc. 40). Both issues having been fully briefed, the matters are now ripe for review.

II. FACTUAL BACKGROUND

A. CHARGED CONDUCT AND THE STATUTE OF LIMITATIONS.

The indictment alleges that Defendant unlawfully procured U.S. Citizenship by lying about and concealing that, when he lived in Ethiopia, he committed acts of violence, and he also ordered others under his control to commit acts of violence, against political opponents. (Doc. 1 at 1-2). According to the indictment, Defendant was a member of the "Derg," which was a council of military officers that overthrew Ethiopia's government in 1974 and remained in power until 1991, and between 1976 and 1978—a two-year period of violence known as the "Red Terror"—Defendant interrogated, severely beat, and ordered others under his control to severely beat, members of the Ethiopian People's Revolutionary Party (EPRP), who were detained by the Derg. (Doc. 1 at 1-2). in 2001, Defendant applied for, and was issued, a visa to immigrate to the United States, and he entered this country as a lawful permanent resident on or about October 3, 2001. (Doc. 1 at 2). The indictment further alleges that, after completing the immigration and naturalization process, during which Defendant avowed that all of the information he provided to immigration officials was true and correct, Defendant became a naturalized U.S. citizen on July 18, 2018, in a proceeding held at the United States District Court in Atlanta, Georgia. (Doc. 1 at 2-3). But according to the indictment, Defendant knowingly made materially false representations on his immigration forms, and in his sworn statements, including that: (1) he never persecuted, directly or indirectly, any person because of race, religion, national origin, membership in a particular social group, or political opinion; (2) he never committed a crime or offense for which he was not arrested; (3) he never gave false or misleading information to any U.S. government official while applying for any immigration benefit; and (4) he never lied to a U.S. government official to gain entry or admission into the United States. (Doc. 1 at 3-6).

Because the statute of limitations for violations of 18 U.S.C. § 1425 is ten years, the government filed an Ex Parte In Camera application under 18 U.S.C. § 3292 on July 13, 2018, seeking to suspend the running of the statute of limitations, which would otherwise have expired on July 18, 2018.³ (Doc. 29-7); 18 U.S.C. § 3291 (providing ten-year statute of limitations for violations of § 1425). In its application, which included an attached declaration from a Homeland Security Investigations (HSI) Special Agent, the government outlined its investigation of Defendant's links to possible crimes of genocide, unlawful arrest and detention in the Federal Democratic Republic of Ethiopia (Ethiopia), including that, although it had been searching for witnesses for some time, the government had only recently confirmed Defendant's identity as a former official in the Derg and his location as currently residing in the Atlanta area. (Doc. 29-7 at 1-2, 8-13). The government further described its efforts to obtain evidence from a foreign government—Ethiopia—that would prove that Defendant is the same individual who committed, and was convicted in absentia for, crimes involving unlawful detention, beatings, torture and killing—specifically, two counts of genocide with an underlying offense of murder, caused by infliction of torture; two counts of genocide with an underlying offense of causing harm to external and internal health of the victim; and one count of unlawful arrest and detention. (Doc. 29-7 at 2-3, 5-7, 10-13). And if Defendant is the same individual, then Defendant made material misrepresentations, or omissions of material facts, on his immigration forms and in his sworn statements. (Doc. 29-7 at 11-12). The government's efforts to obtain evidence from Ethiopia included an official request for evidence made to Ethiopia by the Department of Justice's Office of International Affairs (OIA) on July 2, 2018, and the government requested in its application that the statute of limitations be suspended, beginning on the date of the official request, July 2, 2018, until the Ethiopian government takes final action on OIA's official request, or for a period not to exceed three years during the pendency of the official request. (Doc. 29-7 at 3, 5-7, 12-13). The government also noted that it believed Defendant resided in Kenya before he immigrated to the United States, and stated that if an official request for evidence was made to Kenya, the government would present a supplemental application for suspension of the limitations period for the Court's consideration. (Doc. 29-7 at 6 n.2).

3 The indictment alleges that the crimes charged in counts one and two occurred on July 18, 2008; thus, the ten-year statute of limitations would have expired on July 18, 2018. (Doc. 1). When the United States must obtain foreign evidence, however, suspension of the statute of limitations is permitted under 18 U.S.C. § 3292, which provides that:

(a)(1) Upon 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 for the offense if the court finds by a preponderance of the evidence that an official request has been made for such evidence and that it reasonably appears, or reasonably appeared at the time the request was made, that such evidence is, or was, in such foreign country.

The Honorable Mark H. Cohen, District Judge, granted the government's application, having found by a preponderance of the evidence that an official request had been made to the Federal Democratic Republic of Ethiopia "for evidence located in that country relevant to a pending grand jury investigation of [Defendant] involving a possible violation of 18 U.S.C. § 1425," and under 18 U.S.C. § 3292(b),⁴ he ordered that the statute of limitations be "SUSPENDED beginning July 2, 2018, the date of the Department of Justice's official request for assistance, until the Federal Democratic Republic of Ethiopia takes final action on the official request, but in any event, no later than July 2, 2021." (Doc. 29-8)(signing the order July 13, 2018, "nunc pro tunc to July 2, 2018").

4 18 U.S.C. § 3292(b) provides that:

Except as provided in subsection (c) of this section, a period of suspension under this section shall begin on the date on which the official request is made and end on the date on which the foreign court or authority takes final action on the request.

Almost one year later, on April 30, 2019, the government filed a supplemental Ex Parte In Camera application under 18 U.S.C. § 3292, which included an attached declaration from an HSI Special Agent, requesting that the suspension of the statute of limitations previously granted encompass a request for evidence from the Republic of Kenya (Kenya), as well as a second request for evidence from Ethiopia. (Doc. 29-9 at 1-3, 24-26). OIA made an official request for evidence to Kenya on March 4, 2019, and it made a new, supplemental request for evidence to Ethiopia, beyond what was sought in the original request, on March 20, 2019. (Doc. 29-9 at 3, 24-26). The government requested that the statute of limitations remain suspended, beginning on the date of the first official request, July 2, 2018, until the Ethiopian government takes final action on both official requests, and also until the Kenyan government takes final action on the March 4, 2019, official request; "but in any event, no later than July 2, 2021." (Doc. 29-9 at 6-7, 24-26).

Judge Cohen granted the government's supplemental application on April 30, 2019, having found by a preponderance of the evidence that an official request for evidence had been made to Kenya on March 4, 2019, and a second official request for evidence had been made to Ethiopia on March 20, 2019, "for evidence it reasonably appears is located in those countries relevant to a pending grand jury investigation of [Defendant] involving a possible violation of 18 U.S.C. § 1425." (Doc. 29-10 at 1-2). Under 18 U.S.C. § 3292(b), Judge Cohen again ordered that the statute of limitations be suspended as of July 2, 2018, the date of OIA's original official request for evidence, until the Ethiopian and Kenyan governments take final action on the requests; "but in any event, no later than July 2, 2021." (Doc. 29-10 at 2).

Two years later, on March 31, 2021, the government filed a second supplemental Ex Parte In Camera application under 18 U.S.C. § 3292, which included an attached declaration from an HSI Special Agent, stating that on March 18, 2021, OIA received a response from Ethiopia to its original request for evidence, consisting of 82 pages of documents in the Amharic language, but that the response did not appear to include everything requested. (Doc. 29-11 at 3-4, 9-11). The government had not yet received the evidence sought in the request to Kenya, or in the supplemental request to Ethiopia. (Doc. 29-11 at 3, 9-11). Also, on February 23, 2021, OIA made "an urgent" second supplemental request to Ethiopia seeking assistance locating and interviewing key witnesses in Ethiopia, which similarly remained pending. (Doc. 29-11 at 3, 9-11). The government requested that the suspension of the statute of limitations encompass all pending official requests, and that the statute of limitations remain suspended, beginning on the date of the first official request, July 2, 2018, until the Ethiopian and Kenyan governments take final action on the still pending requests; "but in any event, no later than July 2, 2021." (Doc. 29-11 at 6-7).

The Honorable Timothy C. Batten, District Judge, granted the government's second supplemental application on March 31, 2021, having found by a preponderance of the evidence that official requests for evidence were previously made to Kenya and Ethiopia, and another official request for evidence was made to Ethiopia on February 23, 2021, "for evidence that reasonably appears to be located there relevant to a pending grand jury investigation of [Defendant] involving possible violations of 18 U.S.C. § 1425." (Doc. 29-12 at 1-2). Under 18 U.S.C. § 3292(b), Judge Batten ordered that the statute of limitations remain suspended as of July 2, 2018, the date of OIA's original official request for evidence, until the Ethiopian and Kenyan governments take final action on the pending requests; "but in any event, no later than July 2, 2021." (Doc. 29-12 at 2).

The federal grand jury returned its indictment on May 26, 2021. (Doc. 1).

B. SEARCH WARRANT

On June 15, 2021, approximately three weeks after the grand jury returned the indictment against Defendant, the government sought and obtained a search warrant to search Defendant's home. (Doc. 31-1). HSI Special Agent Nathan Burnham submitted an Affidavit to United States Magistrate Judge Walker in which the agent set forth his belief that Defendant had violated 18 U.S.C. § 1425(a) and (b). (Doc. 31-1 at 2). The Affidavit explained that numerous witnesses and victims had provided information to law enforcement that Defendant interrogated and severely beat prisoners during the Ethiopian Red Terror. (Doc. 31-1 at 4-6). The Affidavit further explained that the Ethiopian government had indicted and convicted Defendant, in absentia, for war crimes during the Red Terror, and had sentenced him to 15 years' imprisonment. (Doc. 31-1 at 7).

Agent Burnham's Affidavit stated that Defendant had applied for an Immigrant Visa and Alien Registration in the United States on or about May 9, 2001, in which he lied about where he lived in Ethiopia during the Red Terror. (Doc. 31-1 at 7). The Affidavit further stated that, on or about July 26, 2007, Defendant applied for naturalization by completing an immigration form and, when interviewed, he swore that the information he provided on his immigration forms was true and correct. (Doc. 31-1 at 7). Included on these forms was Defendant's sworn statements that he "had never persecuted (either directly or indirectly) any person because of race, religion, national origin, membership in a particular social group, or political opinion;" that he had "never committed a crime or offense for which he was not arrested;" that he had "never given false or misleading information to any United States government official while applying for any immigration benefit;" and that he "had never lied to any United States government official to gain entry or admission to the United States." (Doc. 31-1 at 8).

Also in the Affidavit, Agent Burnham explained why law enforcement believed that Defendant resided at the house agents wanted to search. He explained that law enforcement had conducted surveillance at the home and observed Defendant leaving the house driving a car that was registered to Defendant at that exact address. (Doc. 31-1 at 3). The Gwinnett County Tax Assessors records showed that Defendant owned the home and that Defendant listed the house as his principal office address for a company he registered with the Georgia Secretary of State. (Doc. 31-1 at 3).

Agent Burnham's Affidavit further explained why law enforcement believed that evidence of the crime would be found in Defendant's house. First, Agent Burnham stated that, "[b]ased on my training and experience, as well as information learned from other agents involved in this investigation and other investigations of this kind," he believed that individuals keep documents in their homes concerning their identity, and, when an individual has immigrated to the United States, that individual likely keeps documents concerning their immigration and naturalization in their homes as well. (Doc. 31-1 at 10). With respect to how long individuals tend to keep these kinds of documents, Agent Burnham stated, "I also know that people tend to retain such records for long periods of time because identity and immigration documents remain valuable" to them. (Doc. 31-1 at 10). Regarding situations where individuals are charged with committing war crimes, Agent Burnham stated that, "[b]ased on my training and experience, information gathered by myself and other HSI agents during this investigation, and through consultations with colleagues from HSI who have investigated individuals who participated in human rights and war crime investigations," he knew that suspects often maintain in their homes documents "that are evidence of the falsity of the misrepresentations they have made on the immigration paperwork to hide their participation in prohibited acts." (Doc. 31-1 at 11). Finally, Agent Burnham testified that, "I also know, based upon my knowledge and experience investigating immigration law violations," that individuals who have immigrated to the United States typically retain documents addressing their lives before coming to the United States, including "documents and physical objects relating to affiliation and association with militias, relating to their country of origin, and relating to their immigration to and naturalization in the United States, and their immigration to and from other countries, which may reveal inconsistencies about their immigration history." (Doc. 31-1 at 11).

Attachment B of the Search Warrant authorized the executing officers to seize five categories of evidence from inside the home. (Doc. 31-1 at 14). Specifically, Attachment B provided that the law enforcement could seize:

All records, documents, and other items relating to violations of Title 18, United States Code, Section 1425(a) and (b) involving Mezemer ABEBE Belayneh, including:

a. Documents and physical objects relating to [Defendant's] affiliation and association with civilian militias, the Derg, Ethiopian political movements, and the Red Terror, such as photographs, memorabilia, meeting records and/or minutes, logs, publications, propaganda, address books, and other paraphernalia;

b. Documents and physical objects relating to [Defendant's] identity, as well as his activities and life outside the United States, such as photographs, memorabilia, newspaper articles, court records, birth certificates, school records, hospital records, family records, foreign work permits, financial records, foreign government-issued documentation/identification, and other documentation revealing the ownership of property outside the United States;

c. Documents and physical objects related to [Defendant's] immigration to, and naturalization in, the United States, and [Defendant's] immigration to and from other countries, including immigration applications, records, and forms;

d. Written correspondence, journal entries, or other writings; and

e. Court records, newspaper articles, communications, and other indicia

that [Defendant] had knowledge that he was indicted and convicted, in absentia, of human rights violations by an Ethiopian court.

(Id.).

The search warrant was returned on June 17, 2021, and Agent Burnham reported that agents seized a "[b]lue duffel bag with misc[ellaneous] documents and photographs" and a "[p]assport and misc[ellaneous] identity documents." (Doc. 38-1 at 2). In its response to Defendant's Motion to Suppress, the government proffered that 197 pages of documents were seized showing Defendant's identity and his previous life in Ethiopia, as well as an asylum application. (Doc. 38 at 6-7, 13-14).

III. DISCUSSION

A. MOTION TO DISMISS INDICTMENT

Defendant seeks dismissal of the indictment for three reasons: (1) for count two, the alleged crime was completed on March 19, 2008, so the statute of limitations expired on March 19, 2018, prior to the government's first application to suspend the statute of limitations; (2) even assuming a timely suspension application, the district court improvidently granted the suspension; and (3) excessive pre-indictment delay precludes the prosecution. (Doc. 29 at 4). The Court will discuss each argument in turn. 1. The government's first application for suspension of the statute of limitations, which was filed before July 18, 2018, was timely.

Though the indictment alleges that the crimes charged in counts one and two occurred on July 18, 2008—the date that Defendant became a naturalized citizen in the proceeding held at the United States District Court in Atlanta, Georgia—the indictment also states that Defendant applied for naturalization by submitting an N-400 application on or about July 26, 2007, and as part of the application process, he was interviewed under oath on March 19, 2008. (Doc. 1 at 2-3). Defendant argues that the crime alleged in count two—procuring naturalization and citizenship to which he was not entitled, in violation of 18 U.S.C. § 1425(b)—was completed on March 19, 2008, the date that Defendant committed "the first act" of applying for naturalization. (Docs. 1; 29 at 4-8). According to Defendant, unlike a violation of § 1425(a), a violation of § 1425(b) does not require that Defendant "procure[d]" or "obtain[ed]" naturalization and citizenship, only that he "appl[ied]" for it, and the "completion" of his application was March 19, 2008. (Doc. 29 at 4-8). Thus, according to Defendant, expiration of the statute of limitations for count two was March 19, 2018, instead of July 18, 2018, and because the government's first application seeking suspension of the statute of limitations was filed after March 19, 2018, § 3292 bars prosecution of count two. (Id.). Defendant's argument is not convincing.

Defendant cites no binding authority, nor has the Court found any, holding that a § 3292 application must be filed before the statute of limitations expires. (Doc. 29 at 4-8). And the non-binding authority conflicts. The Third and Ninth Circuits have both found that filing the application before the limitations period expires is not required under § 3292, and the Second Circuit has found that it is. See United States v. Hoffecker, 530 F.3d 137, 163 n. 4 (3d Cir. 2008) (superseded by regulation on other grounds)(noting that there is no express requirement that the application to suspend the statute of limitations must be made before the statute has expired, and that "as a matter of statutory construction there is no reason why a case seemingly barred by the statute of limitations cannot be revived by a section 3292 application made before the Government has received all of the requested foreign evidence"); United States v. Jenkins, 633 F.3d 788, 799 (9th Cir. 2011)("the only temporal requirements of a § 3292 application are (1) that the official request for evidence in a foreign country be made before the statute of limitations expires and (2) that the application for suspension be submitted to the district court before the indictment is filed")(citing United States v. Bischel, 61 F.3d 1429, 1434 (9th Cir. 1995)); but compare United States v. Kozeny, 541 F.3d 166, 172 (2d Cir. 2008) (concluding that a statute of limitations is only in operation or effect if it is running, and it cannot be "running" if it has already expired; thus, it follows that a district court can only "suspend" the running of a statute of limitations if the limitations period has not yet expired).

Even assuming, without deciding, that the government is required to file the § 3292 application before the limitations period expires, the Court finds that the government did so here by filing the application before July 18, 2018. (Doc. 29-7). A defendant violates § 1425(b) when he or she, "knowingly applies for or obtains naturalization or citizenship to which he or she is 'not entitled.' " United States v. Moses, 94 F.3d 182, 184 (5th Cir. 1996)(citing 18 U.S.C. § 1425(b)). There are three elements that must be proven: "(1) the defendant issued, procured, obtained, applied for, or otherwise attempted to procure naturalization or citizenship; (2) the defendant is not entitled to naturalization or citizenship; and (3) the defendant knows that he or she is not entitled to naturalization or citizenship." Moses, 94 F.3d at 184; see also Eleventh Circuit Pattern Jury Instructions (Criminal Cases) No. O120 (2022). The statute is phrased in the disjunctive, and includes alternative, distinct offenses.⁵ Mitrovic v. United States, No. 1:12-CR-311-AT-JSA, 2020 WL 6747742, at *4 (N.D. Ga. Sept. 3, 2020), report and recommendation adopted, No. 1:12-CR-0311-AT-1, 2020 WL 6743485 (N.D. Ga. Nov. 16, 2020)(explaining that because the first element requires different proof for different violations, § 1425(b) "provides several distinct offenses") (citing Blockburger v. United States, 284 U.S. 299, 303-04, 52 S.Ct. 180, 76 L.Ed. 306 (1932)(a statute creates multiple offenses when each requires proof of a different element or elements)).

5 18 U.S.C. § 1425(b) states:

Whoever, whether for himself or another person not entitled thereto, knowingly issues, procures or obtains or applies for or otherwise attempts to procure or obtain naturalization, or citizenship, or a declaration of intention to become a citizen, or a certificate of arrival or any certificate or evidence of nationalization or citizenship, documentary or otherwise, or duplicates or copies of any of the foregoing

18 U.S.C. § 1425(b).

A statute of limitations generally begins to run when the crime is complete. Toussie v. United States, 397 U.S. 112, 115, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970). "And, ordinarily, an offense is 'complete' when all the elements of the crime have been satisfied." United States v. Pacchioli, 718 F.3d 1294, 1300 (11th Cir. 2013). As the Eleventh Circuit explained in Pacchioli, when an offense can be established through one of three disjunctive acts and the government charged all three, the statute of limitations is satisfied if any of the three acts occurred within the limitations period. 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 and proved the act of giving, the statute of limitations ran from the date of giving the bribe, even though the agreement to the bribe occurred earlier; thus, the defendant was indicted within the five-year limitations period). It is well-settled law that "a disjunctive statute may be pleaded conjunctively and proved disjunctively." United States v. Haymes, 610 F.2d 309, 310 (5th Cir. 1980);⁶ see also United States v. Griffin, 705 F.2d 434, 436 (11th Cir. 1983)(when an indictment charges several ways of violating a statute in the conjunctive, proof of only one is sufficient to convict).

6 In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit that were issued before October 1, 1981.

Here, count two of the indictment charges that on or about July 18, 2008, Defendant "did knowingly procure, obtain, and apply for naturalization, citizenship, and any certificate and evidence of naturalization and citizenship for himself, to which he was not entitled . . . All in violation of Title 18, United States Code, Section 1425(b)." (Doc. 1 at 5-6). Even though Defendant applied on an earlier date, he agrees that the date he procured/obtained naturalization and citizenship was July 18, 2008. (Doc. 29 at 2). Because a violation of § 1425(b) can be established by Defendant procuring or obtaining naturalization or citizenship, as well as by applying for it, and the government charged procuring/obtaining, the statute of limitations properly runs from that date—July 18, 2008. Pacchioli, 718 F.3d at 1300-01; see also United States v. Latchman, 512 F. App'x 908, 910 (11th Cir. 2013)("[t]o obtain a conviction on that [§ 1425(b)] charge, the government had to prove that Latchman knowingly procured her United States citizenship without being entitled to it"); Mitrovic, 2020 WL 6747742, at *5 ("the [§ 1425(b)] violation for which Movant was charged-applying and obtaining and procuring his naturalized American citizenship on October 3, 2002, by fraud-could not have been complete without having actually procured or obtained any such citizenship").

The Court also rejects Defendant's argument that count two must be dismissed for "multiplicity" because if "procurement" violates § 1425(b), "there would be no substantive distinction between violations of § 1425(a) and § 1425(b)." (Doc. 29 at 7). Defendant cites no authority that supports this argument, and as the Supreme Court explained in Maslenjak, § 1425(a) "makes it a crime to commit some other illegal act in connection with naturalization,"⁷ and its companion provision, § 1425(b), "makes it a crime to "procure or obtain naturalization" for "[one]self or another person not entitled thereto." Maslenjak v. United States, 582 U.S. 335, 137 S. Ct. 1918, 1924-25 and n.2, 198 L.Ed.2d 460 (2017). "If obtaining citizenship without legal entitlement were enough to violate § 1425(a), then that highly specific language in § 1425(b) would be superfluous." Id. at 1925 n.2. "Rather than reading those words to do no work, in violation of ordinary canons of statutory construction, we understand Congress to have defined two separate crimes in § 1425: Assuming the appropriate mens rea, subsection (a) covers illegal means of procurement, as described above, while subsection (b) covers simple lack of qualifications." Id.

7 18 U.S.C. § 1425(a) states:

Whoever knowingly procures or attempts to procure, contrary to law, the naturalization of any person, or documentary or other evidence of naturalization or of citizenship; or

18 U.S.C. § 1425(a).

Accordingly, the government's first application for suspension of the statute of limitations, which was filed before July 18, 2018, was timely based on the date that Defendant procured/obtained naturalization and citizenship, and Defendant's motion to dismiss count two of the indictment on that ground should be denied. 2. The statute of limitations was properly suspended, and the indictment was returned before the limitations period expired.

Defendant next argues that both counts of the indictment must be dismissed because, for two reasons, the government cannot show that it properly obtained suspension of the statute of limitations. (Doc. 29 at 8-13). First, Defendant argues that at the time the applications were filed, a grand jury was not impaneled and actively investigating, and even if a grand jury was impaneled during the first application, that grand jury's term expired prior to the second and third applications, so the orders for suspension were improperly granted. (Docs. 29 at 9-12; 39 at 1-4). Second, Defendant argues that any valid suspension of the statute of limitations expired on March 18, 2021, when Ethiopia took "final action" on the first official request for evidence, so the indictment returned on May 26, 2021, was returned after the limitations period expired. (Docs. 29 at 12-13; 39 at 4). The Court finds no error.

Defendant's argument that § 3292 includes a requirement that the district court must "find that an impaneled grand jury was actively investigating the charges against [Defendant]," (Doc. 29 at 10), is foreclosed by the Eleventh Circuit's decision in United States v. Broughton, 689 F.3d 1260, 1273 (11th Cir. 2012). As the Court explained in Broughton, "[o]ur case law demonstrates that § 3292 is a procedural mechanism that may be used by the government under certain circumstances and that a district court's inquiry is constrained by the boundaries of the two elements required by § 3292." Broughton, 689 F.3d at 1273. "A plain reading of § 3292 demonstrates that a district court's decision to suspend the running of a 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." Id. "If both those considerations are met, the statute of limitations 'shall' be suspended." Id.; United States v. Minter, No. 3:12-CR-00004-TCB-RGV, 2014 WL 12792618, at *6 (N.D. Ga. June 17, 2014), report and recommendation adopted, 45 F. Supp. 3d 1390 (N.D. Ga. 2014)(holding that Broughton "laid to rest" Defendant's arguments that the government must make additional showings in its § 3292 application, such as that the foreign evidence was necessary to bringing the indictment, and that the evidence could not be obtained by any other means than an official request to the foreign government)(citing Broughton, 689 F.3d at 1273); see also United States v. DeGeorge, 380 F.3d 1203, 1213 (9th Cir. 2004) (holding that the phrase "the district court before which a grand jury is impaneled to investigate the offense" in § 3292 is "a mere venue requirement specifying the particular court that may issue the tolling order").

Here, the Court finds that the two conditions the district court must consider under § 3292 were both satisfied—an official request was made; and that official request was for evidence that reasonably appeared to be in the foreign country. Broughton, 689 F.3d at 1273. Indeed, Defendant does not argue that those two requirements were not satisfied. (Doc. 29 at 9-13). All three of the government's applications included supporting declarations from an HSI Special Agent, detailing the investigation and the reasonable belief that evidence was located in Ethiopia and Kenya, and explaining that an official request for legal assistance had been made to both countries—to Ethiopia on July 2, 2018, March 20, 2019, and February 23, 2021; and to Kenya on March 4, 2019. (Docs. 29-7; 29-9; 29-11). The government, therefore satisfied the requirements of § 3292. See United States v. Trainor, 376 F.3d 1325, 1333 (11th Cir. 2004)(holding that under § 3292, the government's evidentiary submission must meet a minimum threshold of reliability, and the government may satisfy its burden by including a sworn or verified application containing the necessary factual information). Also, based on the applications and supporting declarations, Judge Cohen and Judge Batten both found, by a preponderance of the evidence, that the government satisfied the requirements of § 3292—i.e., that official requests had been made for evidence located in Ethiopia and Kenya, and that the evidence reasonably appeared to be in those countries. (Docs. 29-8; 29-10; 29-12); see Trainor, 376 F.3d at 1335 ("Just as district courts do not regularly overturn magistrates' probable cause determinations, however, we expect that an initial district court's preponderance of the evidence determination will not often be overturned by a later district court ruling on a post-indictment motion where the government puts forward some reliable evidence")(emphasis in original).

The Court further finds that the documents received from Ethiopia on March 18, 2021, in response to the original request to Ethiopia was not a "final action" on that request, and in any event, three other valid requests were still pending. The suspension of the limitations period, therefore, did not end on March 18, 2021. As the Eleventh Circuit explained in Torres, the plain language of § 3292 does not define "final action," nor does it provide any guidance for when "final action" occurs. United States v. Torres, 318 F.3d 1058, 1062 (11th Cir. 2003). Taking guidance from the legislative history, and two sister circuits that had directly addressed the issue, the Court held that " 'final action' for the purposes of § 3292(b) occurs when a foreign court or authority provides a dispositive response to each of the items listed in the government's official request for information." Torres, 318 F.3d at 1065.

Here, in the sworn declaration attached to the government's second supplemental application, HSI Special Agent Tyler averred that on March 18, 2021, OIA received 82 pages of documents in the Amharic language from Ethiopia in response to the original request. (Doc. 29-11 at 11). SA Tyler further averred that: some or all of the documents will require translation into English; it did not appear that the documents included everything that was requested in the original request; Ethiopia had not yet responded to its first or second supplemental requests; and Kenya had not yet responded to its request. (Doc. 29-11 at 11). Based on SA Tyler's declaration, the March 18, 2021, response from Ethiopia was not a "final action" because it was not complete. Torres, 318 F.3d at 1065. Defendant argues that there is a "presumption" that the 82-page response received from Ethiopia is "dispositive" though Defendant cites no authority to support that statement. (Doc. 29 at 12-13). But even if it was a dispositive response, which the Court does not find, there were three other pending official requests, to which no response had been received, and two of those still pending requests—March 4, 2019 (Kenya) and March 20, 2019 (Ethiopia)—were included in the government's supplemental application that was submitted to the District Judge for consideration, and approved, on April 30, 2019, which was one year before Defendant's asserted March 18, 2021 "end date."⁸ (Docs. 29-9; 29-10). Thus, whether or not the March 18, 2021, response was dispositive, "final action" had not been taken by Ethiopia or Kenya on the still pending requests—i.e. neither country had provided "a dispositive response to each of the items listed in the government's official request[s] for information." Torres, 318 F.3d at 1065; Minter, 2014 WL 12792618, at *7 (recommending that Defendants' motion to dismiss the indictment be denied because, although the Kingdom of Saudi Arabia (KSA) fully responded to the government's first official request, it had not responded to its supplemental request, so KSA had not taken "final action"). And because final action was not taken, the suspension of the limitations period ended on July 2, 2021, in compliance with § 3292(c), which provides that the total of all periods of suspension "shall not exceed three years," and which was also expressly stated in all three of the District Judge's orders granting suspension. (Docs. 29-8; 29-10; 29-12) (suspending the limitations period beginning on July 2, 2018, until final action on the official request(s) is taken, "but in any event, no later than July 2, 2021").

8 As the Eleventh Circuit instructed in Torres, "it is the preferable practice" that the government request an extension of the suspension period from the District Judge, when a foreign government has been non-responsive or provided incomplete information. Torres, 318 F.3d at 1064-65. And here, the government properly followed that instruction. (Docs. 29-9; 29-11).

Accordingly, the Court finds that the statute of limitations was properly suspended; the indictment, returned on May 26, 2021, was returned before the limitations period expired on July 2, 2021; and Defendant's motion to dismiss the indictment on that ground should be denied.

3. Defendant has not met his burden to show actual prejudice from the pre-indictment delay, nor that the government's delay was a deliberate attempt to gain a tactical advantage.

Even when an indictment is brought within the relevant statute of limitations, the Due Process Clause of the Fifth Amendment may still bar the indictment if there was prejudicial pre-indictment delay. United States v. Lovasco, 431 U.S. 783, 788-91, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Marion, 404 U.S. 307, 323-27, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). For the due process bar to apply, it is Defendant's burden to show that: (1) the delay caused "actual substantial prejudice" to the conduct of his defense; and (2) the government acted in bad faith, intentionally causing the delay for tactical advantage. United States v. Foxman, 87 F.3d 1220, 1222 (11th Cir. 1996); United States v. Butler, 792 F.2d 1528, 1533 (11th Cir. 1986); Stoner v. Graddick, 751 F.2d 1535, 1542-43 (11th Cir. 1985). "This standard is 'an exceedingly high one.' " Butler, 792 F.2d at 1533.

For the first requirement, "[a] stringent standard is employed when examining the issue of prejudice." United States v. Le-Quire, 943 F.2d 1554, 1560 (11th Cir. 1991). Defendant must demonstrate "actual prejudice and not merely 'the real possibility of prejudice inherent in any extended delay.' " Stoner, 751 F.2d at 1544. "Speculative allegations" and "general allegations of loss of witnesses and failure of memories," are insufficient to show actual prejudice. United States v. Radue, 707 F.2d 493, 495 (11th Cir. 1983). And if a defendant asserts prejudice because of the loss of evidence, " 'he must show that the loss impaired his ability to prove a meaningful defense.' " Butler, 792 F.2d at 1533; Stoner, 751 F.2d at 1544. Prejudice cannot be presumed simply because of a lengthy delay in initiating prosecution. Butler, 792 F.2d at 1533; Stoner, 751 F.2d at 1544.

For the second requirement, "the government's inaction in bringing the case is insufficient, standing alone, to establish that the government's actions were motivated by an attempt to gain a tactical advantage." Butler, 792 F.2d at 1534. Similarly insufficient are delays resulting from the government pursuing additional investigation in good faith, or directing its resources toward other cases, delays due to negligence, or unintentional delays. Butler, 792 F.2d at 1534; Stoner, 751 F.2d at 1541; see also United States v. Barragan, 752 F. App'x 799, 801 (11th Cir. 2018).

Here, as actual prejudice to Defendant, he asserts that because of the length of the delay, witnesses' memories of the events "have likely been affected by the passage of time" and "potential defense witnesses could be deceased or otherwise unavailable." (Doc. 29 at 14-15). But as discussed above, speculative and general allegations of loss of witnesses and faulty memories, and the "possibility of prejudice inherent in any extended delay" do not satisfy his burden to show "actual prejudice." Radue, 707 F.2d at 495; Stoner, 751 F.2d at 1544. To the extent Defendant is asserting a loss of evidence because of the "difficult" process to obtain evidence from Ethiopia, " 'he must show that the loss impaired his ability to prove a meaningful defense.' " Butler, 792 F.2d at 1533; Stoner, 751 F.2d at 1544. Not only has he not done that, it is only speculation at this point to even say that the necessary evidence is lost or unobtainable. (Doc. 29 at 15).

Defendant also has not satisfied his burden to show that the government acted in bad faith, intentionally causing the delay for tactical advantage. (Doc. 29 at 15). He states that "[a]lthough the government will deny the appearance of bad faith, such an inference is granted." (Doc. 29 at 15). Defendant cites no authority for that statement, and indeed, the binding authority contradicts it. There is no presumption that the government acted in bad faith. Lovasco, 431 U.S. at 788-91, 97 S.Ct. 2044; Marion, 404 U.S. at 323-27, 92 S.Ct. 455; Foxman, 87 F.3d at 1222; Butler, 792 F.2d at 1533-34; Stoner, 751 F.2d at 1542-43. Defendant argues that the government was "on notice" in 2015 that Defendant lived in Atlanta, but took no action at that time to investigate or corroborate the anonymous claim. (Doc. 29 at 14-15). As discussed above, the government's inaction, alone, is insufficient to meet Defendant's burden. Butler, 792 F.2d at 1534. And "prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect's guilt beyond a reasonable doubt." Butler, 792 F.2d at 1533 (citing Lovasco, 431 U.S. at 790, 97 S.Ct. 2044).

In its response to Defendant's motion, the government provided the timeline of its investigation, starting in 2015 when a witness in an unrelated matter mentioned awareness of a man with Defendant's name, living in Atlanta, who tortured people during the Red Terror. (Doc. 36 at 27). That witness did not have first-hand knowledge of Defendant's conduct, his true identity, or his exact location. (Doc. 36 at 27). In 2016, that same witness provided the name of another potential witness who may have more information. (Doc 36 at 28). An HSI Special Agent made multiple attempts to reach the potential witness, but was unsuccessful. (Doc. 36 at 28). Around the same time, in 2017, the government received information from another source that Defendant's name was included in a report from the Ethiopian Special Prosecutor's Office, which indicated that Defendant had been sentenced to a prison term in Ethiopia. (Doc 36 at 28). By July 2017, still unable to reach the potential witness, and having no first-hand information tying the individual in Atlanta (Defendant) with the individual sentenced in Ethiopia, the government's investigation stalled. (Doc. 36 at 28). In late 2017, the government located what appeared to be a new address for the potential witness. (Doc. 36 at 28). That potential witness was interviewed on June 1, 2018, at which time the witness provided general information about Defendant, his well-known abusive conduct on behalf of the Derg, and that Defendant had been seen in Atlanta. (Doc. 36 at 28). From this witness, the government obtained information about another potential witness, and that second witness was interviewed on June 27, 2018. (Doc. 36 at 28). The second witness helped the government confirm that Defendant was the same person who participated in the persecution of political prisoners during the Red Terror. (Doc. 36 at 28). The official request to Ethiopia for certified court documents and identification information was then sent by OIA on July 2, 2018 (the "original" request discussed above). (Doc. 36 at 29); see Supra, Section II.

Notably, in his reply filed on April 1, 2022, Defendant does not respond to, or dispute, the government's explanation of its investigation, nor does he offer anything additional to satisfy his "exceedingly high" burden to show actual prejudice, and that the government acted in bad faith, intentionally causing the delay for tactical advantage. (Doc. 39); Foxman, 87 F.3d at 1222; Butler, 792 F.2d at 1533; Stoner, 751 F.2d at 1533, 1535. The Court finds that the delay in this case is the result of the government pursuing additional investigation in good faith. Butler, 792 F.2d at 1534; Stoner, 751 F.2d at 1541; Barragan, 752 F. App'x at 801. Because Defendant has not met his burden, the Court finds that Defendant's motion to dismiss the indictment based on pre-indictment delay should be denied.

B. MOTION TO SUPPRESS

In his motion to suppress evidence seized from the search of his home, Defendant makes three arguments: (1) Attachment B fails for particularity; (2) the Affidavit failed to establish a sufficient nexus between Defendant's home and the records sought inside it; and (3) the good faith exception to the exclusionary rule does not apply. (Doc. 31 at 2). Each argument is addressed below.

1. Attachment B is sufficiently particularized.

First, Defendant argues that Attachment B fails for particularity because it authorized a "limitless" search of Defendant's home for "all records," regardless of topic and "without any time limitation or description of specific locations within the home." (Doc. 31 at 3). But Defendant's characterization of the search as being one allowing law enforcement to seize "all records" is belied by the clear demarcations set out in Attachment B.

The Fourth Amendment requires that warrants "particularly describ[e] the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. "This requirement is aimed at preventing '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. 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).

This Circuit further explains 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. The task of the magistrate judge is "simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Bradley, 644 F.3d 1213, 1263 (11th Cir. 2011). This is exactly what the magistrate judge did here.

To begin, Attachment B authorized law enforcement to seize only documents that related to violations of 18 U.S.C. § 1425(a) and (b). (Doc. 34-1 at 14)(emphasis added). Thus, anything that was not relevant to § 1425(a) and (b) could not be seized. Attachment B then provided five illustrative subsections, listing the types of § 1425 documents that would be relevant: (a) documents relating to Defendant's "affiliation and association with" the Derg, Ethiopian political movements, and the Red Terror; (b) documents relating to Defendant's identity and his life outside of the United States; (c) documents related to Defendant's "immigration to, and naturalization in, the United States" and to and from other countries; (d) written correspondence, journal entries, or other writings; and (e) documents showing that Defendant "had knowledge that he was indicted and convicted, in absentia, of human rights violations" in Ethiopia. (Doc. 34-1 at 14). In other words, agents could not seize "all records" as Defendant contends; instead, these records had to relate to Defendant's identity, war crimes in Ethiopia, and his efforts to secure naturalization in the United States. (Doc. 38 at 11).

Defendant points to subsection (d)—the subsection authorizing agents to seize "written correspondence, journal entries, and other writings"—and argues that it constitutes an "omnibus" or "catch-all" clause authorizing seizure of documents that "had nothing to do with the Ethiopian events, prior foreign affiliations or convictions, or Belayneh's naturalization." (Doc. 31 at 4). This argument, though, ignores the very first sentence of Attachment B that modifies all of its subsequent subsections, including subsection (d). Specifically, Attachment B begins by authorizing the seizure of only documents "relating to violations of Title 18, United States Code, Section 1425(a) and (b)," and then provides that those relevant documents may include "written correspondence, journal entries or other writings." Thus, agents were not authorized to seize any and all writings inside the house; instead, they could seize only writings related to Defendant's identity, war crimes, and immigration.

Next, while Defendant notes that Attachment B does not contain a time limitation, the relevant facts of the crimes charged began over four decades ago. In this unique factual scenario, the only way to appropriately limit the documents was by tethering them to the offenses charged, and that's exactly what Attachment B did. See United States v. Lee, No. 1:14-CR-227-TCB-2, 2015 WL 5567102, at *10 (N.D. Ga. Sept. 25, 2015)(finding that, because the warrants "were already adequately particularized based on the subject matter limitation to evidence relating to" the crimes charged, an additional temporal limitation was not required).

Lastly, Defendant argues that the warrant did not identify specific locations within the home to narrow the agents' search. But Attachment B did not need to do so. A lawful search includes all areas where the items listed in Attachment B might be found. Given that the documents sought were papers, which could be hidden anywhere inside a home, a specific location restriction was neither reasonable nor required. See United States v. Ross, 456 U.S. 798, 820-21, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)(finding that "the items sought under the warrant are of a type easily concealed," and [t]he officers were entitled therefore to open drawers, closets, containers and other items that might conceal these items."); United States v. Romo-Corrales, 592 F.3d 915, 920 (8th Cir. 2010)("[P]aper documents can obviously fit into small spaces and containers and, therefore, could be hidden in numerous locations in a residence . . . in the laundry hamper, garage, cooler, behind a mirror or picture, behind a dresser, and underneath the bed.").

The search warrant here was not an "all records" warrant or a "general warrant for all private papers" as Defendant asserts, (Doc. 31 at 4); instead, it was a warrant authorizing agents to seize documents addressing only Defendant's identity, war crimes, and efforts to immigrate and ultimately obtain naturalization in this country. Accordingly, the Court concludes that Attachment B is properly particularized. See Lisbon, 835 F. Supp. 2d at 1346 (the items sought were "tempered by the object of the search - evidence of identity and occupancy of the premises searched - and in relation to the crimes under investigation," and thus the search warrant was sufficiently particularized).⁹

9 Defendant filed a supplement to his motion to suppress, (Doc. 34), at Magistrate Judge Baverman's request, in which Defendant explains that, should this Court find that Attachment B was not adequately particularized, it must suppress all of the seized evidence, but that, if this Court finds that the search warrant was only overbroad, it must suppress "any and all seized items that were not contemplated by the affidavit's probable cause proffer." (Doc. 34). "The requirement that warrants particularly describe the place to be searched and the things to be seized makes general searches under them impossible." United States v. Travers, 233 F.3d 1327, 1329 (11th Cir. 2000)(citing Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965)). "A warrant which fails to sufficiently particularize the things to be seized is unconstitutionally over-broad." Id. As explained above, though, the search warrant here was adequately particularized. Thus, a search conducted under its parameters was not overly broad. Moreover, the government's proffer establishes that the items seized were within the scope of the warrant, (Doc. 38 at 12-14), and Defendant does not challenge the government's explanation of the items seized.

2. The search warrant established a sufficient nexus between Defendant's house and the documents sought.

Defendant next argues that the Affidavit did not sufficiently show a nexus between Defendant's home and the records sought. (Doc. 31 at 6). Probable cause to search a residence exists when "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). "Probable cause is a fluid concept - turning on the assessment of probabilities in particular factual contexts." Lisbon, 835 F. Supp. 2d at 1349 (quoting Gates, 462 U.S. at 232, 103 S.Ct. 2317).

While Defendant asserts that the government "proffered no evidence that naturalization records, forms, or certificates were mailed to Belayneh's home either prior to, or after, Belayneh's naturalization ceremony," and that "[n]o surveillance showed that Belayneh had left the ceremony with the documents sought and returned home with them," the nexus between the objects to be seized and the premises to be searched "need not rest on direct observation." United States v. Lockett, 674 F.2d 843, 846 (11th Cir. 1982). Nor is there a requirement that the illegal activity occurred at the house. United States v. Kapordelis, 569 F.3d 1291, 1310 (11th Cir. 2009). This is because, as the Eleventh Circuit explains, common sense tells us that:

The justification for allowing a search of a person's residence when that person is suspected of criminal activity is the common-sense realization that one tends to conceal fruits and instrumentalities of a crime in a place to which easy access may be had and in which privacy is nevertheless maintained. In normal situations,

few places are more convenient than one's residence for use in planning criminal activities and hiding fruits of the crime.

Id. at 1310.

Here, the Affidavit provided sufficient reason to believe that evidence would be found at Defendant's house. The type of evidence sought—paper documents showing Defendant's identity, past experiences in Ethiopia, and immigration to the United States—is precisely the type of papers that one would reasonably expect to keep at home. Indeed, there are few other locations more suitable. Further, when these papers constitute evidence of a crime, there is an even stronger reason to keep them within arm's length inside one's home. Agent Burnham's explanations as to his and other agents' experiences leading them to the same conclusion only buttressed this nexus. See United States v. Jenkins, 901 F.2d 1075, 1081 (11th Cir. 1990)("We hold [ ] that the combination of a finding of probable cause that [the defendant] committed the theft, the fact that the contraband stolen was composed of items which are capable of being hidden in a residence, and the statement of an agent who had ten years' experience investigating bank robberies provided sufficient probable cause to justify a search of [the defendant's] home."); Bradley, 644 F.3d at 1263-64 (rejecting the defendant's argument that the residence must be "the locus of the crime" or that agents have "procured specific evidence that relevant records would certainly be found there" for probable cause to exist).

Defendant's reliance on United States v. Green, 634 F.2d 222 (5th Cir. Unit B 1981), does not change the analysis. (Doc. 31 at 6). In that case, the Court found ample evidence showing that the defendant engaged in criminal activity in California. Id. at 225-26. The house searched, however, was in Florida. Id. The Court noted that "[i]n normal situations, few places are more convenient than one's residence for use in planning criminal activities and hiding fruits of a crime." Id. at 226. But, the Court continued, Green presented "a different situation" because the Florida house was 3,000 miles away from where the criminal activity occurred, and thus "[t]he convenience of the residence for use as a place to plan and hide fruits of the crime [was] diminished, if not eliminated." Id. at 226. That is simply not the case here, where Defendant lived at the location searched, and the papers sought were documents that individuals are expected to keep with them where they reside.

3. The good-faith exception to the exclusionary rule applies here.

Even if the search warrant was not sufficiently particularized and did not establish a nexus between Defendant's home and the evidence sought, Defendant's motion would still fail under the Leon good-faith exception. In United States v. Leon, 468 U.S. 897, 913, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), the Supreme Court established the "good faith" exception to prevent suppression of items found pursuant to a search warrant. This exception keeps evidence from being suppressed when law enforcement obtains evidence through objective, good-faith reliance on a facially valid warrant that is later found to lack probable cause. Id. Leon's good-faith exception, however, does not apply in four situations: (1) where the magistrate judge issuing the warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth; (2) where the issuing magistrate judge wholly abandoned her judicial role; (3) where the affidavit supporting the warrant is so lacking in indicia of probable cause as to render official belief in is existence entirely unreasonable; and (4) where a warrant is so facially deficient that the executing officers cannot reasonably presume it to be valid. United States v. Robinson, 336 F.3d 1293, 1296 (11th Cir. 2003). Defendant argues that the good-faith exception does not apply here under the fourth prong. Specifically, he argues that no executing officer could reasonably have presumed that Attachment B was sufficiently particularized or that a sufficient nexus existed between the house and the crime. (Doc. 31 at 8-9).¹⁰

10 Defendant also argues that the good-faith exception should not apply because the Affidavit was not incorporated by reference into the Search Warrant. (Doc. 31 at 9)(explaining, "[w]ithout incorporation of the affidavit, application attachment B's failure to limit the documents sought by time period, or the search by specific locations within Belayneh's home, preclude any reasonable presumption of sufficient particularity."). But the search warrant here is the same as all others secured in this District: it includes a statement that Agent Burnham made an Affidavit before Judge Walker and further attaches an Attachment A (which describes the house to be searched) and Attachment B (which describes the documents items to be seized). The Affidavit was referenced in the face of the Search Warrant as being part of the Application, but was not-as it rarely, if ever, is-incorporated into the actual Search Warrant itself. This fact has no bearing on the good-faith exception analysis.

As explained above, however, this Court finds that the Affidavit and Attachment B were sufficiently particularized and provided a sufficient nexus between the house and the evidence. Moreover, as the government points out, it sought the search warrant after the grand jury had already returned the indictment against Defendant. (Doc. 38 at 18). In other words, "probable cause had already been established connecting Defendant to the crimes." (Doc. 38 at 18). Given that the Affidavit connected Defendant to the house through records checks and surveillance and that there was more than a fair probability that the papers sought would be kept in Defendant's house, executing officers reasonably assumed it was valid.

IV. CONCLUSION

For the above reasons, the Court finds that: (1) the government's first application for suspension of the statute of limitations, which was filed before July 18, 2018, was timely; (2) the statute of limitations was properly tolled; and (3) Defendant has not met his burden to show actual prejudice from the pre-indictment delay, nor that the government's delay was a deliberate attempt to gain a tactical advantage. Accordingly, the Court RECOMMENDS that Defendant's Motion to Dismiss the Indictment, (Doc. 29), be DENIED.

With respect to Defendant's motion to suppress, the Court finds that the search warrant was sufficiently particularized and established a probable cause nexus between Defendant's home and the records sought. Accordingly, the Court RECOMMENDS that Defendant's Motion to Suppress Search Warrant, (Docs. 31, 34), be DENIED.

There are no pending matters before the Magistrate Judge,¹¹ and the undersigned is aware of no problems relating to the scheduling of this case. IT IS THEREFORE ORDERED and ADJUDGED that this action be and the same is hereby, certified Ready for Trial.

11 One motion, a motion to strike surplusage, (Doc. 30), has been deferred to the District Judge for ruling.

SO RECOMMENDED this 17th day of October, 2022.