United States District Court, W.D. Kentucky, Louisville
Charles R. Simpson III, Senior Judge
federal grand jury indicted Leonardo Rodriguez Prado with one
count of wire fraud, three counts of aggravated identity
theft, and one count of possession of unauthorized and
counterfeit access devices. Superseding Indictment 1-4, ECF
No. 22. The United States alleges that Rodriguez Prado
installed skimming devices inside gas pumps to illegally
collect credit card and debit card information. Id.
Prado moved to suppress all statements he made to law
enforcement officers on April 26, 2016 and all physical
evidence collected as a result of those statements. Mot.
Suppress 1, ECF No. 28. Rodriguez Prado maintains that the
statements and evidence were obtained in violation of his
rights protected by the Fourth, Fifth, and Sixth Amendments
to the Constitution. Id. The United States
responded. Resp. Opp. Mot. Suppress 1, ECF No. 30. The United
States then filed a “Second Response” to the
motion to suppress. Second Resp. Opp. Mot. Suppress, ECF No.
35. Rodriguez Prado did not reply to either response.
magistrate judge held an evidentiary hearing on the motion to
suppress. During the evidentiary hearing, Louisville Metro
Police Department (LMPD) Detective Yousef Mattiche testified
on behalf of the United States regarding his interactions
with Rodriguez Prado on April 26, 2016. Trial Tr. 1, ECF No.
38. In sum, Detective Mattiche attested that he made two
telephone calls to Rodriguez Prado, set up a pretend exchange
of credit card numbers for money, and Rodriguez Prado came to
the assigned location at the time that they had agreed upon,
which led to his interactions with the officers that form the
basis for the current charges. Id. at 2-36.
magistrate judge issued a report and recommendation on
Rodriguez Prado's motion to suppress. R. & R. 1, ECF
No. 42. The magistrate judge recommended that Rodriguez
Prado's motion to suppress be denied. Id.
Rodriguez Prado and the United States filed objections to the
magistrate judge's report and recommendation. Rodriguez
Prado's Obj. 1, ECF No. 1; United States' Obj. 1, ECF
No. 49. Rodriguez Prado responded to the objections of the
United States. Prado's Resp. Opp. Obj. 1, ECF No. 51. For
the reasons stated below, the Court will overrule Rodriguez
Prado's objections to the magistrate judge's report
and recommendation. The Court will also overrule the United
Standard of Review
Court makes a de novo determination of the proposed findings
or recommendations to which Rodriguez Prado and the United
States object. See 28 U.S.C. § 636(b)(1); Fed.
R. Crim. P. 59(b)(3).
Rodriguez Prado's Objections to the Magistrate
Judge's Report and Recommendation
Prado asserts five objections to the magistrate judge's
report and recommendation. Rodriguez Prado's Obj. 7-15,
ECF No. 44. All of these objections lack merit. First,
Rodriguez Prado objects to the magistrate judge's finding
that Detective Mattiche made two telephone calls and spoke to
him during those telephone calls. Id. at 7-9.
Rodriguez Prado asserts that the evidence does not show that
the telephone calls ever occurred or that he answered the
telephone calls because he is more fluent in Spanish than in
explained during the evidentiary hearing, Detective Mattiche
was the lead detective on the investigation of Rodriguez
Prado. Trial Tr. 41, ECF No. 38. Detective Mattiche testified
that the LMPD received information from a confidential
informant that Rodriguez Prado had been placing skimmers in
gas pumps and then using the collected credit and debit card
information to re-encode other cards. Id. at 10. On
April 26, 2017, Detective Mattiche obtained a telephone
number for Rodriguez Prado. Id. at 15-16. Detective
Mattiche did not testify how he received the telephone number
from the confidential informant. See id.
Mattiche called the number. Id. at 16. When
speaking, he did not identify himself as a law enforcement
officer; instead, Detective Mattiche called himself
“Ahmed” and “used a different
accent.” Id. at 17. He asked the person who
answered the telephone if he was “Leo, ” and the
person said “yes.” Id. Because Rodriguez
Prado's first name is Leonardo, this answer led Detective
Mattiche to believe the person answering the telephone was
Rodriguez Prado. Id. Detective Mattiche asked the
person on the telephone if he had any re-encoded cards that
he was interested in selling, and the other person apparently
answered in the affirmative. Id. at 16. The other
person and Detective Mattiche came to an agreement that
Detective Mattiche would purchase 200 credit card numbers on
a USB drive for $4, 000.00. Id. Detective Mattiche
then suggested that they meet and that the person bring his
computer with him to the meeting to ensure that the credit
card numbers were on the USB drive. Id. at 17.
that day, Detective Mattiche, still posing as “Ahmed,
” called the telephone number again to discuss a
meeting place. Id. at 20. The person who answered
the telephone told Detective Mattiche that he would be in a
white car, and Detective Mattiche replied that he would be in
a blue car. Id. During both of these telephone
calls, Detective Mattiche and the other person spoke in
English. Id. at 22. Detective Mattiche testified at
the evidentiary hearing that he had been able to understand
the other person on the telephone and that he did not have
any reason to believe that the other person had failed to
understand him. Id. At the time and place that they
agreed upon, Detective Mattiche observed a white car arrive.
Id. at 23. The driver of the white car was Rodriguez
Prado. Id. at 26.
Court finds that the magistrate judge correctly found, based
on the evidence that the United States presented at the
evidentiary hearing, that the telephone calls occurred and
that Rodriguez Prado was the person with whom Detective
Mattiche spoke during both telephone calls. Thus, the Court
will overrule ...