United States District Court, N.D. Ohio, Eastern Division
OPINION AND ORDER
AARON POLSTER UNITED STATES DISTRICT JUDGE
December 15, 2017, Defendants Doreen and James Pearl (the
“Pearl Defendants”) filed six motions with the
Court. On January 18, 2018, the Court denied four of those
motions. This case is now before the Court on the remaining
two motions: (1) Joint Motion to Suppress Search Warrant and
Request for Franks Hearing, Doc #: 39; and (2) Joint Motion
to Dismiss Indictment Counts 2-8 and 27-33 as Barred by the
Statute of Limitations, Doc #: 41. The Government filed its
Responses on January 5, 2018. See Doc #: 48 and 50.
The Pearl Defendants filed their Replies on January 12, 2018.
See Doc #: 57 and 59. On January 16, 2018, the Court
directed the Government to file Sur-Replies. See
Jan. 16, 2018 Order [Non-Document]. The Pearl Defendants
filed a Motion to Supplement the Pearl Defendants' Joint
Motion for Franks Hearing and Joint Reply for Brief in
Support on January 21, 2018. See Doc #: 66. During a
motion hearing with the Court on January 22, 2018, the Court
granted the Motion to Supplement. See Doc #: 67. The
Government filed its Sur-Replies on January 29, 2018.
See Doc #: 68 and 69. For the reasons stated below,
the Court DENIES the Pearl Defendants'
Joint Motion to Suppress Search Warrant and Request for
Franks Hearing and GRANTS their Joint Motion
to Dismiss Indictment Counts 2-8 and 27-33.
Motion to Suppress Search Warrant and Request for Franks
Pearl Defendants filed a motion to suppress the search
warrants used to: (1) access the Pearl Defendants' and
Pro-Trac Tires, LLC's (“Pro-Trac”) email
accounts; and (2) search the Pro-Trac offices. Mot. 1; Mot.
to Supp. 2. James Pearl was the President of Pro-Trac and
Doreen Pearl was an employee there during the time that the
alleged conduct occurred. Indictment ¶ 14. The Pearl
Defendants request a Franks hearing to demonstrate that the
search warrant affidavits contained material
misrepresentations and omissions. Mot 1. In order to obtain a
Franks hearing, the Pearls must show two things. First, the
Pearls must make a substantial showing that the affiant
knowingly, intentionally, or with reckless disregard for the
truth, included a false statement in his warrant affidavit.
United States v. Poulsen, 655 F.3d 492, 504 (6th
Cir. 2011). Second, the Pearls must show that the false
statement was necessary to the finding of probable cause.
Pearls allege that the affiant, Special Agent Shaw, made one
materially false statement and four material omissions. Reply
6-10. First, the Pearls argue that the only basis for SA
Shaw's allegedly false statement is an email provided in
discovery. Id. at 6. They assert that this email
reveals that the statement is false. Id. But as the
Government points out, Shaw does not say in his Affidavit
that an email was used as the basis of his statement.
Sur-Reply 6. A Source of Information (“SOI”)
verbally gave SA Shaw the information contained in this
statement. Id. So, the Pearls have not made a
substantial showing that the statement was false. Next, the
Pearls allege that SA Shaw made four material omissions.
Reply 8. The Government responds that each of these alleged
omissions were not included in the 61-page Affidavit because
they were of no consequence. Sur-Reply 5. The Pearls also
offer no evidence that shows these omissions were made with
intent to mislead, as is required. They do not provide
affidavits, witness statements, or any other evidence gained
during discovery that shows that SA Shaw knew his search
warrant affidavit contained false statements or omissions.
See United States v. Rose, 714 F.3d 362, 370 (6th
Cir. 2013). The Court cannot grant a Franks hearing without
such evidence. Franks v. Delaware, 438 U.S. 154, 171
(1978). Further, the Government argues that if these
omissions had been included in the Affidavit, the magistrate
would have still found probable cause existed. Id.
The Court agrees. Even without the alleged omissions, the
61-page Affidavit more than establishes probable cause.
the Court must deny the Pearls' motion.
Joint Motion to Dismiss Indictment Counts 2-8 and 27-33 as
Barred by the Statute of
Pearl Defendants argue that fourteen counts of the Indictment
are barred by the statute of limitations. Mot. 3. The
Indictment charges the Pearls with violations of 18 U.S.C.
§ 371 (Conspiracy to Defraud the United States of
America), 18 U.S.C. §§ 542 and 2 (Entry of Goods by
Means of False Statements), and 18 U.S.C. §§ 545
and 2 (Smuggling Goods into the United States). Doc #: 6. The
Counts at issue allege violations of 18 U.S.C. §§
542 and 545. Title 18 U.S.C. § 3282's five-year
statute of limitation applies to all Counts of the Indictment
because they allege violations of non-capital offenses.
See 18 U.S.C. § 3282(a) (“Except as
otherwise expressly provided by law, no person shall be
prosecuted . . .for any offense, not capital, unless the
indictment is found . . . within five years . . . after such
offense shall have been committed.”). The Government
does not dispute this. Rather, the Government argues that
these Counts “were part of a scheme to defraud the
United States” and that “[t]he duration of the
scheme to defraud is a fact question for the jury.”
Opp. 3; see also Sur-Reply 3-4. But while the
“duration of the scheme” is a jury question for
the Count 1 conspiracy claim (see Opinion and Order,
Doc #: 65), the statute of limitations for violations of 18
U.S.C. §§ 542 and 545 is calculated from the date
that the offense was committed. See 18 U.S.C. §
3282. The Indictment was filed on June 21, 2017 so any Counts
under §§ 542 and 545 alleging offenses committed
before June 21, 2012 are barred by the statute of
offenses in both statutes are committed at the time the goods
enter into the United States. Each time goods enter the
United States by means of false statements or are smuggled
into the United States, a separate violation occurs.
Accordingly, each violation of these statutes is listed as a
separate Count in the Indictment. Counts 2-8 and 27-33 each
allege an entry of goods by either false statements or
smuggling. See Indictment ¶ 83, 87. The
Indictment specifically states that the date of entry for
each of these counts range from June 14, 2012 to June 20,
2012. As such, these offenses occurred more than five years
prior to the Indictment, and are therefore time-barred. The
36 Counts that allege offenses committed within the
limitations period remain. Further, the acts detailed in
Counts 2-8 and 27-33 may still be considered as part of the
conspiracy if the jury finds a continuing course of conduct
and at least one overt act of the conspiracy occurred within
five years of the filing of the Indictment. See United
States v. Mennuti, 679 F.2d 1032, 1032 (2d Cir. 1982);
see also Order and Opinion, Doc #: 65.
the Pearl Defendants' motion is granted and these Counts
foregoing reasons, the Court DENIES the
Pearl Defendants' Joint Motion to Suppress Search Warrant
and Request for Franks Hearing and GRANTS
the Pearl Defendants' Joint Motion to Dismiss Indictment
Counts 2-8 and 27-33. Counts 2-8 and 27-33 of the Indictment
are hereby DISMISSED.