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United States v. Aboshady

United States District Court, D. Massachusetts

February 22, 2018

United States of America
Moustafa Moataz Aboshady, Defendant.



         Defendant Moustafa Moataz Aboshady (“defendant” or “Aboshady”) has been indicted on one count of conspiracy to make false statements and to conceal in connection with health care benefit programs, in violation of 18 U.S.C. § 371, and two counts of false statements in connection with health care benefit programs, in violation of 18 U.S.C. § 1035. The indictment also includes a criminal forfeiture allegation.

         Pending before the Court are 1) defendant's objections to the orders of United States Magistrate Judge Marianne B. Bowler denying his motion to compel production of purportedly exculpatory documents and information regarding the government's execution of a warrant against defendant's email accounts, 2) defendant's motion to suppress certain digital evidence, 3) defendant's motion to dismiss the criminal indictment and 4) defendant's motion for a bill of particulars. The objections and motions will be addressed seriatim.

         I. Background

         At all relevant times, defendant, who earned a medical degree in Egypt, worked with his uncle, Fathalla Mashali (“Mashali”) at New England Pain Associates (“NEPA”). The government alleges that that Dr. Aboshady assisted Mashali in falsifying and causing to be falsified patient encounter notes in NEPA's medical records.

         In March, 2014, the government obtained two search warrants for electronic data from Google and AOL. The Google warrant sought all electronic data from the email accounts of six individuals, including Dr. Aboshady. The AOL warrant sought the data from the email account of Dr. Mashali.

         Aboshady was indicted on September 27, 2016, by a grand jury on charges stemming from his alleged involvement in a scheme to defraud several Medicare providers.

         II. Analysis

         A. Objections to Magistrate Judge Order

         Defendant objects to the magistrate judge's order of October 11, 2017, denying his second motion to compel discovery. That motion sought to compel

         All documents and information in any form regarding the Government's execution of the NEPA Warrants, the Gmail Warrant, and the AOL Warrant and review of the documents and electronic data seized pursuant to those warrants.

         If a party timely objects to the non-dispositive rulings of a magistrate judge on pretrial matters, the district judge must modify or set aside any part of the disputed order that is “contrary to law or clearly erroneous”. Fed. R. Crim. P. 59(a).

         Under the “contrary to law” requirement, the district judge reviews pure questions of law de novo, see PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 15 (1st Cir. 2010), and factual findings for clear error, Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 4 (1st Cir. 1999). Mixed questions of law and fact invoke a sliding scale of review pursuant to which

[t]he more fact intensive the question, the more deferential the level of review (though never more deferential than the clear error standard); the more law intensive the question, the less deferential the level of review.

In re IDC Clambakes, Inc., 727 F.3d 58, 64 (1st Cir. 2013) (internal quotation marks omitted).

         The “clearly erroneous” prong requires the district judge to accept the factual findings and conclusions of the magistrate judge unless, after reviewing the entire record, the district judge has a “strong, unyielding belief that a mistake has been made.” United States v. Gorski, 36 F.Supp.3d 256, 264 (D. Mass. 2014) (quoting Phinney, 199 F.3d at 4).

         Defendant contends that the order of the magistrate judge is contrary to law because it misapplies discovery standards and Fourth Amendment principles and rests on clearly erroneous factual findings. The government responds that the magistrate judge properly applied First Circuit precedent and based her decision on facts in the record.

         The government complied with the two-step process for searching electronically stored information provided for in Fed. R. Crim. P. 41(e)(2)(B). The warrant authorized seizure of the disputed email accounts and the government executed the warrants on those accounts which consisted of more than 400, 000 emails. Later, the government reviewed the information to determine what was consistent with the warrant. Binding circuit precedent makes clear that the warrant was not overbroad and that the government's off-site inspection did not offend the Fourth Amendment. See United States v. Upham, 168 F.3d 532, 537 (1st Cir. 1999); United States v. Kanodia, No. CR 15-10131-NMG, 2016 WL 3166370, at *7 (D. Mass. June 6, 2016) (rejecting defendant's argument that the two-step electronic search procedure violates the Fourth Amendment) (citing Upham, 168 F.3d at 535)).

         The Magistrate Judge also correctly concluded that the government's retention of the electronic information did not compel suppression of the warrant-responsive emails. “Unreasonable delay in the execution of a warrant that results in the lapse of probable cause will invalidate a warrant.” United States v. Syphers, 426 F.3d 461, 469 (1st Cir. 2005) (internal quotation marks omitted) (citation omitted). Defendant does not contend that probable cause had lapsed nor is there any indication that it had. Furthermore, the evidence would not be rendered inadmissible “absent a showing of prejudice to the defendant[] resulting from the delay.” Id. The Magistrate Judge found no such showing and defendant provides no additional specifics in his objection. Accordingly, defendant's objections to the execution of the warrant do not include “material . . . information that tends to . . . cast doubt on the admissibility of evidence” or be subject to a motion to suppress.[1] See Local Rule 116.2(a)(2).

         Accordingly, defendant's objections to the magistrate judge order will be overruled.

         B. Defendant's Motion to Suppress Certain Digital Evidence

         Defendant submits that the government's retention of emails non-responsive to a warrant constitutes an unreasonable seizure that merits suppression of all emails seized from the account. The government responds that 1) blanket suppression is not a permitted remedy, 2) the identified emails are within the scope of ...

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