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United States v. Brown

United States District Court, D. Minnesota

December 5, 2019

United States of America, Plaintiff,
v.
Joseph Jay Brown, Defendant.

          Michelle E. Jones, Assistant United States Attorney, United States Attorney's Office, Minneapolis, MN, on behalf of Plaintiff.

          Douglas L. Micko, Assistant Federal Defender, Office of the Federal Defender, Minneapolis, MN, on behalf of Defendant.

          MEMORANDUM OPINION AND ORDER

          ANN D. MONTGOMERY U.S. DISTRICT JUDGE

         I. INTRODUCTION

         This matter is before the undersigned United States District Judge for consideration of Defendant Joseph Jay Brown's (“Brown”) Objections [Docket No. 47] to Magistrate Judge Elizabeth Cowan Wright's September 20, 2019 Report and Recommendation (“R&R”) [Docket No. 46]. In the R&R, Judge Cowan Wright recommends denying Brown's Motion to Suppress Statements, Admissions and Answers [Docket No. 22] and Motion to Suppress Evidence Obtained as a Result of Search and Seizure [Docket No. 23]. Based on a de novo review of the record, and for the reasons stated below, Brown's objections are overruled. The R&R is adopted. Brown's motions are denied.

         II. BACKGROUND

         The factual background of this case is set forth in the R&R and is incorporated by reference. Briefly, on June 11, 2015, Special Agent Marissa Pitzen (“SA Pitzen”) of the Internal Revenue Service - Criminal Investigation (“IRS”) executed a search signed the previous day by United States Magistrate Judge Steven E. Rau. See Pre-Trial Hearing [Docket No. 29], Gov't Ex. 1 (Appl. Search Warrant). The search warrant is supported by an affidavit, in which SA Pitzen states her 12 years of experience investigating the preparation of false tax returns. The affidavit then explains her investigation into Number 1 Tax LLC (“Number 1 Tax”), a business principally owned by Brown and Calvin Karn. Id. at 4-23. SA Pitzen describes receiving an alert from the IRS's Scheme Development Center (“SDC”) about the types of tax returns being filed through Number 1 Tax by Brown and Karn. Based on the alert, SA Pitzen analyzed tax returns filed by Number 1 Tax. SA Pitzen found evidence that Number 1 Tax knowingly falsified income tax returns, which were then filed on behalf of clients to create and inflate tax refunds.

         After SA Pitzen analyzed the personal tax returns of Brown, Karn, and a third filer, Kyesha Williams, SA Pitzen then set up an undercover operation to place an undercover IRS agent as a client at Number 1 Tax. According to the affidavit, Brown was the tax form preparer for the undercover client. Brown recommended reporting extra income, which the client had not claimed. SA Pitzen reported that in her experience, this evidence revealed and corroborated what the IRS SDC had flagged, a scheme to file falsified income tax returns. She attested that in her experience businesses such as Number 1 Tax keep files for their clients and records of their preparation at the business location, often in hard copy and on the business' computers.

         Brown objects to the R&R's determination that the search warrant was supported by probable cause. Def.'s Obj., at 3-5; R&R, at 23-25. In addition, Brown argues the search warrant lacked particularity and was otherwise overbroad. Def.'s Obj., at 5-8; R&R, at 25-29. Finally, Brown argues the good-faith exception to the exclusionary rule (“Leon good-faith exception”) announced in United States v. Leon, 469 U.S. 897 (1984)) does not apply. Def.'s Obj., at 8-9; R&R, at 29-31.

         III. DISCUSSION

         A. Standard of Review

         In reviewing a magistrate judge's report and recommendation, the district court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); see also D. Minn. L.R. 72.2(b).[1] A district judge “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id.

         B. Probable Cause

         Brown argues the search warrant lacks probable cause because the search warrant application and supporting affidavit only “raise a mere suspicion” of wrongdoing. Def.'s Obj. at 4. Brown argues the application fails to establish ...


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