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RECOMMENDATION:
For the foregoing reasons, this Court finds that the good faith exception to the exclusionary rule does not apply with respect to the search of the Kayla premises. Therefore, it is respectfully recommended that Defendant’s motion to suppress the fruits of that search, appearing at Docket Entry [24], be granted.
OBJECTIONS
A copy of this Report and Recommendation is being provided to all counsel via ECF. Any written objections to this Report and Recommendation must be filed with the Clerk of the Court within fourteen (14) days of filing of this report. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 72(b). Any requests for an extension of time for filing objections must be directed to the District Judge assigned to this action prior to the expiration of the fourteen (14) day period for filing objections. Failure to file objections within fourteen (14) days will preclude further review of this report and recommendation either by the District Court or Court of Appeals. Thomas v. Arn, 474 U.S. 140, 145 (1985) (“[A] party shall file objections with the district court or else waive right to appeal.”); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008) (“[F]ailure to object timely to a magistrate’s report operates as a waiver of any further judicial review of the magistrate’s decision”).
SO ORDERED:
Dated: Central Islip, New York
September 10, 2019 /s/ Anne. Y. Shields
ANNE Y. SHIELDS
United States Magistrate Judge
Not too good for the Government.
VIA ECF
Hon. Sandra J. Feuerstein
United States District Judge
United States District Court
Eastern District of New York
100 Federal Plaza
Central Islip, NY 11722-9014
Re: United States v. John Drago, CR-18-394-SJF-AYS
Dear Judge Feuerstein:
We respectfully submit this letter in response to the Government’s letter of Friday, September 20, 2019, to raise several points in advance of Monday’s pretrial conference.
(1) Since it is now clear that the Government violated John Drago’s constitutional rights to be free from unreasonable search and seizure not once, but twice, and further, that no basis exists for avoiding suppression of the evidence seized by the unconstitutional 2013 Kayla
warrant, we request the Court now approve Judge Shields’ September 10, 2019 Report and Recommendation, and formally order the evidence suppressed.
(2) In its letter, the Government has asserted that, notwithstanding the suppression of the evidence, it intends to proceed with prosecuting John. According to the Government, it will now – more than one year after seeking the indictment, more than six years after the execution of the search, and almost eight years from beginning its investigation into John’s business – ask the grand jury to issue yet another charge against John, by way of an ostensible superseding indictment, and to expand on the description and scope of the conduct charged in the current indictment. The notion that the Government will now, at this late date,
seek to add new charges and additional detail, but only in reaction to being embarrassed by having lost the suppression motion, smacks of impropriety and desperation on the Government’s part.
(3) Even assuming a case against John could still somehow proceed, the Government will bear “the burden of affirmatively proving that any evidence” it intends to use against John to support those charges “was derived from legitimate independent sources.” That is, the Government may not rely on evidence obtained as a direct or indirect result of the illegal search of Kayla. See, e.g., United States v. Conti, 864 F.3d 63 (2d Cir. 2017) (quoting Kastigar v. United States, 406 U.S. 441 (1972)). That burden is “not limited to a negation of taint; rather, it imposes on the prosecution the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of” the improperly seized evidence. Conti, 864 F.3d at 91.
(4) For this reason (among others), John objects to the Government’s proposed destruction of any evidence at all at this point, including but not limited to electronic data seized pursuant to the 2013 search warrant that the Government in its letter proposes to destroy by September 30. Among other things, that electronic evidence may contain information relevant to any Kastigar-related issues that may yet need to be litigated, and it may be relevant to other motions yet to be filed in this case or other cases yet to be filed. Further, it appears as though, in the process of making those data images in 2013, the Government’s computer evidence team rendered one or more of the original hard drives
inoperable (including personal and family-related photograph files that have sentimental value that no amount of money could replace), so we may be seeking the return and/or handover of that electronic evidence to John. Accordingly, we respectfully request that the Court deny the Government’s request for permission to destroy evidence, and further, that it order the Government to refrain from destroying any evidence pending the Court’s consideration of John’s objections to the Government’s proposal.
(5) To the extent the Government is seeking to impose a new charge on John, or expand the conduct at issue under the pending charges, the Court should be highly skeptical of such an attempt. A review of the affidavit in support of the search warrant demonstrates that all the evidence of any alleged wrongdoing was gathered more than five years prior to the
indictment in this case – that is, before August 2013. It is difficult to imagine how the Government could possibly maintain the charges in the existing indictment (even with the factual embellishment they suggest), given that the only evidence it appeared to have of any actions by anyone within the five years before the return of the indictment was the now suppressed search fruits. The Government asserts in its letter, without explanation, that it believes it can sustain at least some of the currently pending charges with untainted evidence.
We request that the Court require that Government counsel explain, on the record at tomorrow’s conference, how they have sufficient evidence to support the pending charges. If the Government cannot satisfactorily represent that it can prove the charges in the indictment, the Court should order dismissal of the charges (or at least any charges about which the Government cannot make such a representation).
(6) The Government appears to assert that it has some evidence relating to the crimes currently pending that it intends to produce now (or sometime soon), but only if it obtains a superseder, and even then, only after at least 30 more days have passed. We do not understand how any
such evidence was not produced last year, or how, at the very least, it should not be produced immediately.
(7) The failure of the Government previously to produce evidence it now suggests exists in its possession – that purportedly relates to the currently pending charges – suggests the Government is engaged in gamesmanship, potentially in violation of Rule 16. We plan to seek an inquiry by the Court as to whether the Government has intentionally withheld materials it was legally obligated to provide a year ago for what appears to be a strategic advantage.
(8) For related reasons, we object not only to the Government’s aggressively extended proposed time frames for discovery production, but also to its proposed extended motion practice schedule. Assuming the Court permits the Government to proceed on its stated course, once the Government has made its production, and we have had a chance to review it, we would be prepared to propose a schedule that more appropriately takes into account the damage that the continued pendency of this case is having on John’s life and business (of which the Government is well aware, given that John has repeatedly tried to move this case along despite the Government’s best efforts to delay it. See, e.g., Government’s July 25, 2019 letter proposing a post-suppression hearing briefing schedule running through October 7, 2019). The Government’s proposed timeline is a transparent attempt to unjustifiably further delay
this case.
In sum, at this point in the case, one could reasonably ask whether the Government’s stubborn pursuit of this case is a persecution rather than a prosecution.
Igor is not dead. Witless protection maybe, but he is not dead. The only publicly disseminated information regarding his death, came from Baltia Airlines.
We're not talking about a typical airline. This new airline is the first of its kind. HR is reaching out to current shareholders and offering them cadet entry level positions in the new company, USSpaceways, LLC, a subsidiary of the Baltia corporation.
Construction is well underway at their new facility.
If this case was related to Tony and the gang, he would have already thrown them under the bus.
I agree, the defense wants the "original files" brought to court for a reason.
My guess is when the defense went to review the original files, they realized they were looking at photocopies and may have learned the original files have been lost.
"The approximately 25 boxes of material (most of which are not full and are quite light) currently are stored at the Offices of the Internal Revenue Service in Hauppauge, Long Island. (We know this, because we reviewed them yesterday in that location.). They are easily transportable to the Eastern District of New York courthouse by Tuesday. Indeed, we offer to drive the materials to the courthouse ourselves, with an agent escort to maintain custody, if necessary. (We note that the government’s suggestion that the sheer volume of materials seized would be burdensome to bring to court merely serves to prove our point — that the agents’ execution of this warrant amounted to an unconstitutional general search.)
In light of the patent relevance of these materials and the defense’s plan to use them for evidentiary purposes, and the government’s refusal to bring them to court, we respectfully request that Your Honor issue an order requiring the Government to bring the boxes of search materials to the courtroom for the beginning of the hearing on Tuesday, July 23, 2019. We appreciate the Court’s attention to this matter."
The Judge has not ruled upon this yet as it was filed on 7/19/2019
Case 2:18-cr-00394-SJF-AYS Document 63 Filed 07/19/19 Page 1 of 2 PageID #: 1048
He is not drowning yet. The defense team seems to be banking on lost or missing original evidence, and unavailable witnesses. Considering the evidence has been in the care of Federal civil servants for the past 6 years, they've got pretty good chance.
The other nagging question, why did the Government sit on this case for 5 years before indicting?
The Honorable Anne Y. Shields
United States Magistrate Judge
100 Federal Plaza, Courtroom 830
Central Islip, NY 11722-9014
Re: United States v. John Drago, 18 Cr. 394 (SJF) (AYS)
Dear Magistrate Judge Shields:
We write in connection with the evidentiary hearing scheduled before Your Honor for July 23, 2019, concerning John Drago’s motion to suppress (see Dkt. 57).
Yesterday, we wrote to the Government requesting that it have available at the hearing the materials seized pursuant to the August 2013 search warrant. At about 5:07 pm today, the Government informed us that “the production of the boxes of material would be both burdensome and
immaterial to the issues before the Court; as such, the government declines to [produce them for the hearing].” We have attached the Government’s July 19, 2019 e-mail to this letter as Exhibit A.
Contrary to the Government’s assertion, the search materials are directly relevant to the issue of whether the agents acted in good faith in executing the admittedly unparticularized search warrant. John is permitted to cross-examine the Government’s witnesses on their claimed good faith by confronting them with the actual items that they seized. Indeed, the actual items have evidentiary value for which no photocopy could substitute. This necessarily requires John to have access to the physical search materials in the courtroom. And, Her Honor has a right to inspect the physical evidence herself (and its sheer volume) to determine whether an objectively reasonable officer, faced with the evidence in its physical form and not as a photocopy, would have seized that material
pursuant to the search warrant. For this reason, search materials are routinely made available in the courtroom during such hearings. See, e.g., United States v. Wey, 256 F. Supp. 3d 355, 372 (S.D.N.Y. 2017) (referencing hard-copy search items presented to court at hearing); see also United States v. Vilar, No. S3 05-CR-621 (KMK), 2007 U.S. Dist. LEXIS 26993 (Apr 5, 2007 S.D.N.Y.) (original evidence made available at hearing on good faith execution of unparticularized warrant at defense’s request).
Moreover, John’s request is not burdensome. The approximately 25 boxes of material (most of which are not full and are quite light) currently are stored at the Offices of the Internal Revenue Service in Hauppauge, Long Island. (We know this, because we reviewed them yesterday in that location.). They are easily transportable to the Eastern District of New York courthouse by Tuesday. Indeed, we offer to drive the materials to the courthouse ourselves, with an agent escort to maintain custody, if necessary. (We note that the government’s suggestion that the sheer volume of materials seized would be burdensome to bring to court merely serves to prove our point — that the agents’ execution of this warrant amounted to an unconstitutional general search.)
In light of the patent relevance of these materials and the defense’s plan to use them for evidentiary purposes, and the government’s refusal to bring them to court, we respectfully request that Your Honor issue an order requiring the Government to bring the boxes of search materials to the courtroom for the beginning of the hearing on Tuesday, July 23, 2019. We appreciate the Court’s attention to this matter.
Sounds like you got some bad advice from your broker. If you had no short term gains to use the short term loss against, you still could have sold them and applied the loss to the yearly $3000 deduction limit.
Now your broker can buy them from you for $0.00 so that you'll have a completed sales transaction to write them off on your 2019 tax return.
https://ttlc.intuit.com/community/investments-and-rental-properties/discussion/i-sold-a-penny-stock-that-is-non-marketable-to-td-ameritrade-for-zero-dollars-i-bought-this-for-29k/00/298286
Johnny's trial regarding his check cashing business.
Next hearing scheduled for 7/23/19.
If it hasn't been turned into beer cans yet Baltia's former 747 would be 40 years old.
Then sink every penny you possibly can into this glorious gem.
You probably should take some more off the table before the SEC shuts it down.
Yep, every one of these Stinky Pinky scams have great potential.
"We tried"? Do you miss their lies?
Yes, the forum will still be here with rapidly dwindling postings.
Igor is not dead.
The only palms Tony was greasing were his own and his fellow fraudsters.
It was. After Delta saw Baltia's pro-forma they were trying to buy Igor and his business plan. They wanted to apply it to all of their aircraft and make a Gazillion dollars every month.
The only flight path Baltia owned outright was the one straight into the crapper.
The once a week to Saint Pete was taken away long before Igor's fake death.
Plus Delta canceled direct flights into Russia a year ago.
https://www.ruaviation.com/news/2018/3/6/10961/?h
Do you still not get it? Every penny you still had in this POS is gone forever.
I love it when a plan comes together.
After being tasked with the removal of the engines from N706BL for the REPO, Connie made sure the proposed lease agreement required payment in full prior to delivery.
A scam? After eight years of many billions of dollars worth of claimed contracts and not a single stone has been turned over in the construction of Natly 1. Surely you jest.
Weren't they kiting checks with Johnny's help?
They could have bought the inspectors for less.
Every day since 8/24/1990 is an anniversary for Baltia & crew's lies.
As per SEC documents, he use to live at 63-25 SAUNDERS STREET, SUITE 7I, REGO PARK, NY 11374
https://www.sec.gov/Archives/edgar/data/869187/0000869187-97-000003.txt
https://streeteasy.com/rental/2009277
Did you miss the daily reporting about the Government shutdown for the past few weeks?
None of the Real Airlines were willing to smuggle undocumented Russian rent-a-dates and counterfeit Beluga Caviar into the country like Igor would have before he went into witness protection.
Must be the beloved characters from the next Dumb and Dumber series, Harry Dunne and Lloyd Christmas.
Same ole Fantasy Airline
Baltia has not been on the up and up since August of 1989.
Possible chance of what? Certainly not becoming a Real Airline.
As soon as you bought shares of BLTA you were guaranteed to get nothing.
With or without any lawsuits and SEC headaches, the company is NEVER going to correct their prior mistakes.
Igor is not dead.
The Songbird deal was far smarter, than trying to get a 37 year old junkyard airframe certified to fly 1 day week.
Combination, Baltia never had the sufficient funds readily available to complete the transaction as claimed and their economic authority was revoked for the same reason the registration is being revoked for.