Decision and Order — United States v. Michael Kornaker (W.D.N.Y., Dkt. 54, March 15, 2022)

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A Decision and Order in United States of America v. Michael Kornaker, 21-CR-37A (Case 1:21-cr-00037-RJA-HKS), Document 54, filed March 15, 2022, in the U.S. District Court for the Western District of New York. On October 22, 2021, Magistrate Judge H. Kenneth Schroeder, Jr. filed a Report, Recommendation and Order recommending that the Court deny Defendant's motion to suppress. Defendant's objections, filed December 17, 2021, argue that the IRS search warrant was overbroad and insufficiently particularized and seek a Franks hearing on alleged misrepresentations in the Government's 18 U.S.C. § 2705(b) application. After oral argument on February 23, 2022, the Court adopts the Magistrate Judge's conclusion and reasoning.

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      Case 1:21-cr-00037-RJA-HKS Document 54 Filed 03/15/22 Page 1 of 3




UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

                            Plaintiff,
                                                               DECISION AND ORDER
v.                                                                  21-CR-37A


MICHAEL KORNAKER,


                      Defendant.
________________________________________


       This case was referred to Magistrate Judge H. Kenneth Schroeder, Jr., pursuant

to 28 U.S.C. § 636(b)(1) for the performance of pretrial proceedings. On October 22,

2021, Magistrate Judge Schroeder filed a Report, Recommendation and Order

recommending that the Court deny Defendant’s motion to suppress. Dkt. 36.

       Defendant filed objections to this recommendation on December 17, 2021,

arguing that the IRS search warrant was both overbroad and insufficiently particularized

insofar as it was not narrowly tailored to the evidence set forth in IRS Special Agent

(SA) Quattrini’s affidavit in support. Dkt. 44. Defendant argued that SA Quattrini’s

affidavit in support of the search warrant was focused on the U.S. Small Business

Administration (SBA) fraud alleged in Counts 1-3 of the indictment, and therefore

evidence seized from Defendant’s email account regarding the alleged American

Express credit card (AMEX) fraud set forth in Counts 4-5 was beyond the proper scope

of the search warrant.

       Defendant further argues that the 18 U.S.C. § 2705(b) application of the

Government, seeking to prohibit Google from notifying Defendant of the existence of the

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search warrant, contained material misrepresentations. Finally, Defendant alleges that

the Government’s § 2705(b) application was made specifically to avoid a motion to

suppress when the search warrant was issued, as Defendant was already represented

by counsel at that time. Defendant now seeks a Franks hearing regarding the alleged

misrepresentations contained in the § 2705(b) application, as well as an order requiring

the Government to explain to the Court ex parte how Defendant’s awareness of the

warrant would have undermined the ongoing investigation.

      The Government filed its response in opposition on January 14, 2022. Dkt. 47.

Oral argument on Defendant’s objections was held before the Court via Zoom for

Government on February 23, 2022.

      Pursuant to 28 U.S.C. § 636(b)(1), the Court applies a de novo standard of

review to the portions of a Report and Recommendation to which timely and specific

objections have been raised.

      Upon due consideration of the arguments, the Court adopts the conclusion and

the reasoning of the Magistrate Judge as set forth in the Report, Recommendation and

Order that Defendant Kornaker failed to establish either that certain documentation and

data seized from his email account was beyond the proper scope of the valid search

warrant issued to the IRS, or that the Government’s 18 U.S.C. § 2705(b) application

contained material misrepresentations. The parties are to appear before the Court via

Zoom for Government tomorrow, March 16, 2022, as previously scheduled.




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      IT IS SO ORDERED.

                                  __s/Richard J. Arcara________
                                  HONORABLE RICHARD J. ARCARA
                                  UNITED STATES DISTRICT COURT


Dated: March 15, 2022




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