Unopposed Motion for Leave to File Document Pre-Trial Motion to Suppress — USA v. McKenzie (Dkt. 38, M.D. Fla.)

Summary

Diop McKenzie's unopposed motion for leave to file a late pretrial motion to suppress in United States v. McKenzie, Case No. 2:23-cr-88-SPC-KCD, U.S. District Court for the Middle District of Florida, Ft. Myers Division, filed 01/24/24 as Document 38. It states he is charged with bank fraud, wire fraud and aggravated identity theft over what the government maintains were fraudulent PPP loans obtained partly with a stolen identity. The defense says discovery has come piecemeal, with ten government disclosures through December 8, 2023, most after the motion deadlines. The latest disclosure included body cam videos from a September 14, 2020 traffic stop, from which the defense says the government's trial evidence was derived and which it argues can be challenged under the Fourth Amendment. The motion asks for until February 9, 2024, and the prosecutor does not oppose.

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UNITED STATES DISTRICT COURT 
MIDDLE DISTRICT OF FLORIDA 
FT. MYERS DIVISION 
 
 
UNITED STATES OF AMERICA 
 
v.  
Case No. 2:23-cr-88-SPC-KCD 
 
DIOP MCKENZIE   
______________________________________/ 
 
UNOPPOSED MOTION FOR LEAVE TO FILE A 
PRE-TRIAL MOTION TO SUPPRESS 
 
 
The Defendant, DIOP MCKENZIE, moves this Court for leave to file a 
pre-trial motion to suppress after the previously scheduled motion deadlines, 
and in support states as follows: 
1. 
Mr. McKenzie is charged in a multi-count indictment with two 
counts of bank fraud in violation of 18 U.S.C. § 1344, two counts of 
wire fraud in violation of 18. U.S.C. §1343, and one count of 
aggravated identity theft in violation of 18 U.S.C. § 1028A.  
2. 
The allegations revolve around what the Government maintains 
were fraudulent Paycheck Protection Act (PPP) loans. The 
Government further maintains that Mr. McKenzie acquired and 
used a stolen identity as part of the scheme.  
3. 
The original motion deadline was set by the Court as October 20, 
2023. The motion deadline was later extended by the Court until 
Case 2:23-cr-00088-SPC-K_D     Document 38     Filed 01/24/24     Page 1 of 4 PageID 90

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November 20, 2023, shortly after the Government’s first two 
disclosures.  
4. 
 As the Court has been advised at subsequent status conferences, 
the discovery in this case is voluminous, and has been provided 
piecemeal by the Government. 
5. 
There have been ten discovery responses by the Government, the 
latest on December 8, 2023. All but two of these disclosures were 
after the original motion deadline. Six of these disclosures were 
after the extended deadline.  
6. 
The December 8 disclosure includes two lengthy police body cam 
videos from a September 14, 2020, traffic stop.  
7. 
A review of the videos along with discovery previously provided 
reflects that the evidence the Government intends to use against 
Mr. McKenzie at trial was derived from this traffic stop. Moreover, 
there are multiple grounds for challenging the seizure of evidence 
following this stop as violative of the Fourth Amendment.   
8. 
Accordingly, Mr. McKenzie seeks leave of Court to file a motion to 
suppress evidence. The specific grounds for the anticipated motion 
could not have been known before the previous motion deadlines.  
9. 
This matter is currently on the March 2024 trial calendar.  
---
Case 2:23-cr-00088-SPC-K_D     Document 38     Filed 01/24/24     Page 2 of 4 PageID 91

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10. 
Mr. McKenzie requests until February 9, 2024, to file a motion to 
suppress.  
11. 
Assistant United States Attorney Yolande Viacava does not oppose 
this motion.  
 
WHEREFORE, the Defendant moves this Court to grant him leave to 
file a motion to suppress up to February 9, 2023.   
 
Respectfully submitted, 
A. Fitzgerald Hall, Esq. 
Federal Public Defender 
Middle District of Florida 
                              
/s/ Russell K. Rosenthal                                  
Russell K. Rosenthal 
Florida Bar No. 0319244 
Assistant Federal Public Defender 
2075 West First Street 3rd Floor  
Fort Myers Florida 33901 
Telephone: 239-334-0397 
Facsimile: 239-334-4109 
 
 
 
 
 
 
 
 
 
 
 
 
Case 2:23-cr-00088-SPC-K_D     Document 38     Filed 01/24/24     Page 3 of 4 PageID 92

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CERTIFICATE OF SERVICE 
 
 
I HEREBY CERTIFY that on this 24th day of January 2023, a true copy 
of the foregoing filed in this court and a copy was forwarded using CM/ECF to 
Yolande Viacava, Office of the United States Attorney, 2110 First Street, 3-137 
Fort Myers, Florida 33901. 
 
 
 
 
 
 
 
   /s/ Russell K. Rosenthal 
  
 
 
 
 
 
   Russell K. Rosenthal 
 
 
 
 
 
 
   Assistant Federal Defender 
 
Case 2:23-cr-00088-SPC-K_D     Document 38     Filed 01/24/24     Page 4 of 4 PageID 93

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