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United States v. Prado

United States District Court, W.D. Kentucky, Louisville

July 19, 2017

UNITED STATES OF AMERICA PLAINTIFF
v.
LEONARDO RODRIGUEZ PRADO DEFENDANT

          MEMORANDUM OPINION

          Charles R. Simpson III, Senior Judge

         I. Introduction

         A 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. at 1.

         Rodriguez 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.

         The 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.

         The 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 States' objections.

         II. Standard of Review

         The 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).

         III. Rodriguez Prado's Objections to the Magistrate Judge's Report and Recommendation

         Rodriguez 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 English. Id.

         As 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.

         Detective 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.

         Later 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.

         The 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 ...


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