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United States v. Pendergrass

United States District Court, N.D. Georgia, Atlanta Division

February 22, 2018

UNITED STATES OF AMERICA,
v.
ALLEN PENDERGRASS, Defendant.

          REPORT AND RECOMMENDATION

          CATHERINE M. SALINAS UNITED STATES MAGISTRATE JUDGE.

         This case is before the Court on the initial and particularized Motion to Suppress Search Warrant filed by Defendant Allen Pendergrass. [Docs. 26, 40]. For the reasons that follow, I recommend that the Motion to Suppress be denied.

         BACKGROUND

         Defendant has been charged in a ten-count indictment with wire fraud, money laundering conspiracy, and aggravated identity theft. [Doc. 1]. The object of the pending Motion to Suppress is a search warrant dated September 19, 2013, signed by a Fulton County Magistrate Court judge, with an attached affidavit executed by Douglas Ricks, an officer with the Atlanta Police Department (the “Warrant”).[1] [Doc. 44-1 at 1-8].

         The Warrant authorizes a search of the business property located at 4854 Old National Highway, in Atlanta, Georgia with the name “Asset Financial Recovery, LLC” on the front door. [Doc. 44-1 at 1]. Among other things, the Warrant authorizes the seizure of computers and a subsequent search of those computers for evidence of forgery and theft by taking. [Id. at 2-3]. Officer Ricks provided the following detailed, sworn testimony in support of his request for issuance of the Warrant:

The City of Atlanta's Major Fraud Unit was notified of a fraud against the city committed by the business of Asset Financial Recovery, Inc. They advised us an asset recovery company contacted the financial department of the City of Atlanta both by emails and telephone to advise they represented various businesses and individuals who had not received payments awarded to them by the City of Atlanta. The asset recovery company provided names of businesses and individuals who were owed money by the City of Atlanta. The City of Atlanta's Financial Department conducted an audit to see if the checks had been cashed by those businesses and individuals and learned the checks had not been cashed. The City of Atlanta cancelled the original checks [and] then re-issued checks to the victims through the recovery company (Asset Financial Recovery, Inc.). The checks were mailed to [P.O. Box] 1809 in Fayetteville, Georgia 30214.
On July 16, 2013, Ms. Linda Guy from the City of Atlanta's financial department received information from attorney Ashley Miller advising she is a victim of identity fraud. Attorney Miller advised she represented the law firm of Weissman, Nowack, Curry and Wilco in a case against the City of Atlanta. Attorney Miller told financial officer Linda Guy her signature had been forged on the documents sent to the City of Atlanta requesting a payment of $8, 000.00 dollars to be sent to the listed P.O. Box. On June 03, 2013, the City of Atlanta's financial department then checked the other request that had been by made by Asset Financial Recovery, Inc. Currently the City of Atlanta's financial department is not sure how Asset Financial Recovery, Inc. obtained the names of the businesses and individuals who had not been paid by the City of Atlanta. Ms. Guy told us Asset Financial Recovery, Inc. filed an open records request and this is possibly how they learned who had not received payments from the City of Atlanta.
I checked the business, Asset Financial Recovery Inc. to see if it is [a] legitimate business in the state of Georgia. I learned the company was incorporated on 10-22-2012 as a profit corporation. The registered agents are Deidre Barber, Allen James Pendergrass and Nathan Pendergrass. Investigator Bower told me he can see in the account statements deposits of more than $26, 000.00 dollars on May 15, 2013 and $100, 000.00 into the account of Assets Financial Recovery Inc. on June 20, 2013. He also identified the person making the deposits as Allen James Pendergrass. Investigator Bower also advised me as soon as the money was deposited into the business account numerous checks were made payable to Deidra Barber and Terrell McQueen[. T]hese check[s] were in excess of ten thousand dollars. Then email request[s] for payment were made by Mr. Terrell McQueen.
Investigator Bower sent me pictures of the suspect Mr. Allen James Pendergrass cashing the fraudulently obtained checks. The checks were cashed in Fulton County at the Wells Fargo bank located at 5060 Old Bill Cook Road, College Park, Georgia 30349. I secured two arrest warrants for Forgery 3rd degree and two for Theft by Taking against Mr. Allen James Pendergrass.
On August 28, 2013 Sgt. Cooper and [I] went to the address of the business and noticed a grey Mercedes with the tag number of AVQ5903 Ga. I asked investigator V. Bracley to check it on ACIC. She advised me the car is registered to Allen James Pendergrass with the address 44l Hwy 279 Fayetteville, Ga. 30214. Sgt. Cooper and I walked inside the business and saw a glass case on the wall with the locations of each business in the building. Asset[] Financial Recovery Inc. is located in suite 161. We took pictures of the office door with the business's name plate next to it. I then contacted Investigator Ron Bower from Wells Fargo Bank. I asked him to check the deposits and to let me know if there were pictures of the deposits being made in their bank. Mr. Bower advised he did have two pictures of the suspect Mr. Allen Pendergrass depositing the two fraudul[ent]ly obtained che[c]ks. He sent me the two images.
Base[d] on the above information I am requesting a search warrant for the business of Asset Financial Recovery.

[Doc. 44-1 at 12, “Affidavit”].[2]

         Defendant argues that there is no probable cause for the issuance of the Warrant, and therefore all evidence and fruits of the search and seizure pursuant to that Warrant should be suppressed. [Doc. 40 at 1-2]. Quoted below is the totality of Defendant's argument in his two-page particularized Motion to Suppress:

The affidavit, signed by Officer Ricks, relates (after much boilerplate) that a purported victim related that her signature had been forged and funds in the amount of $8, 000 had been misappropriated. She then filed an open records request to obtain information from the city of Atlanta. She then apparently related what she believed might had [sic] happened, but the ...

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