OPINION AND ORDER Defendant Paul J. Mathieu is charged with conspiring to commit health care fraud. Mathieu moves to suppress evidence produced from an allegedly unconstitutional search of three email accounts. For the following reasons, Defendant’s motion is denied.I. BACKGROUNDThe Third Superseding Indictment is the operative indictment and is referred to in this Opinion as the “Indictment.” It charges that, beginning in 2007 and continuing through at least 2013, Defendants participated in a conspiracy to defraud the Medicare Program (“Medicare”), the New York State Medicaid Program (“Medicaid”) and other insurance providers. The scheme allegedly involved eight medical clinics (the “Clinics”) in Brooklyn, New York, owned and operated by a co-conspirator (the “True Owner”). The Indictment alleges that Defendants caused the Clinics to submit fraudulent claims to Medicare, Medicaid and other insurance providers for unnecessary medical services or services that were in fact not provided. These services were purportedly provided to individuals who were insured by Medicare, Medicaid or both, and who some Defendants and co-conspirators had recruited with cash payments (the “Paid Patients”).The Indictment further charges that Defendants and their co-conspirators provided the Paid Patients prescriptions and referrals for medically unnecessary medications, transportation services or durable medical equipment, such as adult diaper kits. This allowed third-party providers to bill Medicare, Medicaid and other insurance providers for services, medications or equipment that were medically unnecessary or in fact not provided.The Indictment alleges that from 2007 to 2013, the True Owner employed Mathieu to represent falsely to Medicare and Medicaid, among others, that he solely owned and controlled at least four of the Clinics. In addition to acting as a nominal owner, Mathieu allegedly claimed to have performed medical services that he in fact did not perform, and allegedly signed prescriptions and referrals for medically unnecessary services, medications and supplies.II. DISCUSSIONDefendant Mathieu seeks to suppress evidence obtained from three email accounts — [email protected], [email protected] and [email protected] — as a result of three search warrants directed to Google, Yahoo and Microsoft, respectively, and issued on March 16, 2018. Mathieu argues that the search warrants were overbroad, not supported by probable cause and not sufficiently particularized. Defendant’s motion to suppress is moot as to [email protected] because the Government does not intend to use information produced from this account at trial. The motion to suppress is otherwise denied on the merits, as explained below.A. StandingAs an initial matter, the motion to suppress is denied because Mathieu failed to establish that he has standing to challenge the search warrants.1. Applicable law“[A] defendant’s Fourth Amendment rights are violated only when the challenged conduct invade[s] his legitimate expectation of privacy rather than that of a third party.” United States v. Santillan, 902 F.3d 49, 62 (2d Cir. 2018) (alteration in original) (internal quotation marks omitted). A defendant seeking to suppress evidence based on an alleged Fourth Amendment violation “must show that he had a reasonable expectation of privacy in the place or object searched.” Id. (quoting United States v. Delva, 858 F.3d 135, 148 (2d Cir. 2017)). The defendant’s burden “is met only by sworn evidence, in the form of an affidavit or testimony, from the defendant or someone with personal knowledge.” United States v. White, No. 17 Cr. 611, 2018 WL 4103490, at *8 (S.D.N.Y. Aug. 28, 2018) (quoting United States v. Montoya-Eschevarria, 892 F. Supp. 104, 106 (S.D.N.Y. 1995).2. ApplicationDefendant lacks standing to challenge the search warrants as to [email protected] and [email protected]. Defendant has not demonstrated by sworn evidence that he has a legitimate expectation of privacy in these accounts. Nowhere in Defendant’s motion to suppress does Defendant assert a legitimate expectation of privacy; Defendant does not claim to own either of these accounts. See United States v. Lustyik, 57 F. Supp. 3d 213, 223 (S.D.N.Y. 2014) (“A person has no expectation of privacy in another person’s email account.”). Absent any showing that the email accounts belong to Mathieu, Defendant has no basis for challenging the warrant on Fourth Amendment grounds.B. Probable Cause and ParticularityEven assuming that Defendant has standing, the motion to suppress is denied because the warrants were supported by probable cause and were not overbroad.1. Applicable Law“[A] search pursuant to a warrant issued by a judicial officer upon a finding of probable cause is presumptively reasonable….” Ganek v. Leibowitz, 874 F.3d 73, 81 (2d Cir 2017). “The warrant must describe with particularity the place to be searched and the items to be seized — a requirement that protects individuals from exploratory rummaging not supported by probable cause.” Zuniga-Perez v. Sessions, 897 F.3d 114, 123 (2d Cir. 2018) (quoting United States v. Bershchansky, 788 F.3d 102, 110-111 (internal quotation marks omitted)).2. ApplicationThe warrants were supported by probable cause. The Affidavit in support of the search warrants cites two cooperating witnesses who provided an investigating FBI agent with emails from the [email protected] and [email protected] accounts. Based on these emails, the agent reasonably believed, based on his training and experience with the investigation, that the email accounts contained information related to Mathieu’s alleged tax liability as a result of participating in the conspiracy and the dollar amount needed to pay kickbacks to patients. These facts support Magistrate Judge Netburn’s finding of probable cause. See Walczyk v. Rio, 496 F.3d 139, 157 (2d Cir. 2007) (“[A] reviewing court must accord considerable deference to the probable cause determination of the issuing magistrate.”); accord United States v. Pizarro, No. 17 Cr. 151, 2018 WL 1737236, at *9 (S.D.N.Y. Apr. 10, 2018).The search warrants are particularized and not overbroad. First, the warrants describe the place to be searched as email accounts [email protected] and [email protected], which were operated by Google and Yahoo, respectively. Second, the warrants sufficiently describe the items to be seized as email content from between April 1, 2007, to December 31, 2013, related to nine categories1 detailed in Part III of the warrants. While Defendant argues that the warrants are overbroad because Part II of the warrants directed the service providers to produce “all email content” from the accounts, Part III constrains review of the documents to the eight relevant categories related to the offenses. The warrants therefore satisfy the basic elements of the particularity requirement and are not overbroad. See Zuniga-Perez, 897 F.3d at 123 (internal quotation marks omitted) (“The warrant must describe with particularity the place to be searched and the items to be seized.”).C. TimelinessDefendant’s motion to suppress is also untimely. The deadline for all of Defendants’ pretrial motions was June 9, 2017. Although the relevant search warrants were not issued until March 16, 2018, Defendant had all the necessary information for months before he filed the present motion on October 22, 2018.III. CONCLUSIONFor the foregoing reasons, Defendant’s motion to suppress is DENIED.Dated: November 9, 2018New York, New York
