Full opinion text
MEMORANDUM AND ORDER J. PAUL OETKEN, District Judge: The Indictment in this case charges 36 defendants with conspiracy to commit racketeering, health care fraud, mail fraud, and money laundering in connection with an allegedly fraudulent no-fault insurance scheme. Presently before the Court are several pretrial motions filed by certain Defendants. Oral argument on these motions was held on April 19, 2013. For the reasons set forth below, the motion to suppress evidence seized from the TriState Billing office is granted, while Defendants’ other motions are denied. I. Motion to Strike the Fraudulent Incorporation Theory from the Indictment Defendants Yuriy Zayonts, Michael Danilovich, and Boris Treysler, joined by several other Defendants, move to strike portions of the Indictment insofar as they are based on the Government’s theory of “fraudulent incorporation,” arguing that the theory is legally insufficient to support a conviction for mail fraud or health care fraud (or conspiracy or RICO charges premised on those offenses). A. Background The Indictment charges a complex scheme to defraud automobile insurance companies through New York’s No Fault Comprehensive Motor Vehicle Insurance Reparation Act (the “No-Fault Law”), N.Y. Ins. Law § 5102 et seq. With respect to the fraudulent incorporation theory, the Indictment alleges as follows: 5. At all times relevant to this Indictment, pursuant to New York State Law, all medical clinics in New York State must have been incorporated, owned, operated, and/or controlled by a licensed medical practitioner in order to be eligible for reimbursement under the No-Fault Law. Insurance companies would deny all billings for medical treatments from a medical clinic that was not actually owned, operated and controlled by a licensed medical practitioner. 6. In actuality, the No-Fault Clinics were not owned, operated, and controlled by a licensed medical practitioner; instead, the actual owners, operators, and controllers of the No-Fault Clinics were individuals who were not licensed medical practitioners and who were not identified on documents filed with the New York State authorities (the “No-Fault Clinic Controllers”). The No-Fault Clinic Controllers, among other things, paid a fee and/or salary to licensed medical professionals (the “No-Fault Doctors”) so that the No-Fault Doctors would (1) incorporate a professional corporation under which a No-Fault Clinic could bill insurance companies; (2) open a bank account for the Clinic; (3) sign the lease for the Clinic property; (4) sign the Clinic’s bills for treatments under the No-Fault Law; and/or (5) make the excessive and unnecessary prescriptions and referrals for additional treatments and medical supplies to other fraudulent medical clinics. In addition, the No-Fault Clinic Controllers, among other things, invested the initial funds to establish the No-Fault Clinics; identified the locations for the Clinics; negotiated the rent for the Clinics’ leases; sourced and paid for the Clinics’ equipment; arranged for Patients to receive treatment; and/or received most, if not all, of any proceeds from the No-Fault Clinics. 7. Furthermore, the No-Fault Clinic Controllers arranged for other similarly fraudulently incorporated entities to provide excessive and unnecessary medical treatments based on referrals from the No-Fault Doctors (the “Modality Clinics”).... In return, the No-Fault Clinic Controllers received cash kickbacks for each referral from other individuals who fraudulently owned, operated and controlled the Modality Clinics (the “Modality Clinic Controllers”). Similar to the No-Fault Clinics, many of the Modality Clinics were fraudulently incorporated by licensed medical practitioners who did not own, operate and/or control the Modality Clinics (the “Modality Professionals”). (Indictment ¶¶ 5-7.) New York’s No-Fault Law requires automobile insurance companies to reimburse drivers and passengers for “[a]ll necessary expenses” up to $50,000 resulting from personal injuries arising out of motor vehicle accidents. N.Y. Ins. Law § 5102. Pursuant to regulations promulgated by the New York State Superintendent of Insurance, an insured may assign his or her benefits to the health care provider, which may then receive direct payment for the services provided. 11 N.Y.C.R.R. § 65-3.11(a). The regulations further provide: A provider of health care services is not eligible for reimbursement under section 5102(a)(1) of the [New York] Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York or meet any applicable licensing requirement necessary to perform such service in any other state in which such service is performed. 11 N.Y.C.R.R. § 65-3.16(a)(12). The New York State Department of Education is authorized to issue a certificate of authority to a “qualified professional service corporation” that is organized pursuant to Section 1503 of the New York Business Corporation Law. N.Y. Educ. Law § 6507(4)(e). Section 1503 provides that such an entity’s certificate of incorporation (i) shall state the profession or professions to be practiced by such corporation and the names and residence addresses of all individuals who are to be the original shareholders, directors and officers of such corporation, and (ii) shall have attached thereto a certificate or certificates issued by the licensing authority certifying that each of the proposed shareholders, directors and officers is authorized by law to practice a profession which the corporation is being organized to practice and, if applicable, that one or more of such individuals is authorized to practice each profession which the corporation is authorized to practice. N.Y. Bus. Corp. Law § 1503(b). Section 1507(a) of that statute provides that “[a] professional service corporation may issue shares only to individuals who are authorized by law to practice in this state a profession which such corporation is authorized to practice.... ” Section 1508 states that “[n]o individual may be a director or officer of a professional service corporation unless he is authorized by law to practice in this state a profession which such corporation is authorized to practice and is either a shareholder of such corporation or engaged in the practice of his profession in such corporation.” In short, New York licensing requirements are structured so as to “prohibit nonphysicians from owning or controlling medical service corporations.” State Farm Mut. Auto. Ins. Co. v. Mallela, 4 N.Y.3d 313, 320-21, 794 N.Y.S.2d 700, 827 N.E.2d 758 (2005). In Mallela, the New York Court of Appeals, answering a question certified by the Second Circuit, held both that the above-referenced regulations are valid, and that “fraudulently incorporated” medical corporations “are not entitled to reimbursement” from insurers under the No-Fault Law. Id. at 320, 322, 794 N.Y.S.2d 700, 827 N.E.2d 758. Noting “[New York] State’s prohibition against lay ownership of shares in medical corporations (and the accompanying potential for fraud),” as well as “the strength of the regulation [11 N.Y.C.R.R. § 65-3.16(a)(12) ],” the Court determined that insurance carriers “may look beyond the face of licensing documents to identify willful and material failure to abide by state and local law.” Id. at 321, 794 N.Y.S.2d 700, 827 N.E.2d 758. Such a rule, the Court held, was consonant with the Superintendent’s regulation, which had been promulgated “to combat rapidly growing incidences of fraud in the no-fault regime, fraud that [the Superintendent] has identified as correlative with the corporate practice of medicine by non-physicians.” Id. at 320 n. 2, 794 N.Y.S.2d 700, 827 N.E.2d 758. B. Discussion On a motion to dismiss the Indictment, the Court assumes the truth of the allegations in the Indictment. See United States v. Velastegui, 199 F.3d 590, 592 n. 2 (2d Cir.1999). Thus, in cases where the Government has not proffered the evidence it intends to present at trial, “the sufficiency of the evidence is not appropriately addressed on a pretrial motion to dismiss the indictment.” United States v. Alfonso, 143 F.3d 772, 776-77 (2d Cir.1998). Defendants contend that the Indictment’s fraudulent incorporation theory is legally insufficient for several reasons. They argue (1) that the alleged facts do not establish any affirmative misrepresentation or omission sufficient to support a charge of fraud; (2) that the alleged facts fail to support any contemplated injury to the insurers; and (3) that the fraudulent incorporation theory fails to implicate a cognizable property interest of the insurers. Each of these arguments is addressed in turn. 1. Affirmative Misrepresentation or Omission “The [federal] fraud statutes are violated by affirmative misrepresentations or by omissions of material information that the defendant has a duty to disclose.” United States v. Autuori, 212 F.3d 105, 118 (2d Cir.2000) (citation omitted). Defendants argue that, even assuming the allegations in the Indictment to be true, no misrepresentation were made regarding who “owned,” “operated,” or “controlled” the relevant clinics or professional corporations (“PCs”). Thus far, the Government has identified one type of document that, it claims, evidences such a misrepresentation: the “NF3” form — a standard form submitted by PCs to insurers to request payment on claims that have been assigned by insured patients. The NF3 form, entitled “VERIFICATION OF TREATMENT BY ATTENDING PHYSICIAN OR OTHER PROVIDER OF HEALTH SERVICE,” contains the following language in Item 17: IF THE PROVIDER OF SERVICE IS A PROFESSIONAL SERVICE CORPORATION OR DOING BUSINESS UNDER AN ASSUMED NAME (DBA), LIST THE OWNER AND PROFESSIONAL LICENSING CREDENTIALS OF ALL OWNERS (Provide an additional attachment if necessary). In the blank space following this language on the form, the PCs included the name of a medical doctor or other professional. The Government argues that because the person named was not the “true owner” of the PC, but was only the “paper owner” or “straw owner,” this constitutes an affirmative misrepresentation to the insurer on the NF3 form. According to Defendants, the Government has simply “invent[ed] a new doctrine of law called ‘true ownership’ in an attempt to avoid the conclusion that no affirmative misrepresentations of ownership was made to the insurance companies.” (Zayonts Rep. at 1.) Defendants do not offer a persuasive reason for concluding that the statements of ownership on the NF3 forms were, as a matter of law, not affirmative misrepresentations. Defendants simply assert, absent citation to any authority, that “the doctors who incorporated the PCs are, indeed, the owners of the PCs.” (Zayonts Mem. at 7.) According to Defendants, this must be the case, because the certificates of incorporation of the PCs list the doctors as the original shareholders, directors, and officers of the PCs. It is simply irrelevant to the question of ownership, argue Defendants, whether those doctors then “turn[ ] over the business operation of [the] PC[s] to [ ] non-professional[s].” (Zayonts Mem. at 9.) The Court disagrees that the issue of who “owns” a PC can necessarily be resolved simply by examining the PC’s certificate of incorporation. Rather, the question of “ownership” is considered a question of fact, or a mixed question of law and fact. See, e.g., New Windsor Volunteer Ambulance Corps, Inc. v. Meyers, 442 F.3d 101, 111 (2d Cir.2006); In re Meyer, 151 F.3d 1033, 1998 WL 538160, at *4 (7th Cir. Apr. 21, 1998); Am.Jur.2d, Trial § 663 (2013). Thus, the question of who actually owned the PCs at the time the NF3 forms were filled out — and, by extension, the question whether Defendants misrepresented the identity of the owners — is properly viewed as one for the jury, to be answered based on the evidence presented at trial. Moreover, to the extent that Defendants are arguing that the evidence thus far identified by the Government — i.e., the NF3 form — is insufficient to establish a misrepresentation as to ownership of the PCs, such an argument is properly the subject of a Rule 29 motion, and is, at this juncture, premature. Accord United States v. Piper, No. 12 Cr. 41, 2012 WL 4757696, at *2 (D.Vt. Oct. 5, 2012). Although the Government has now committed itself to misrepresentations of “actual ownership” for its fraudulent incorporation theory in this case, that position does not preclude it from offering other evidence probative to the indicia of ownership— which presumably may include evidence regarding the operation and control of the PCs. 2. Injury to Insurers Defendants also argue that the fraudulent incorporation theory is legally insufficient because it does not establish any intent to cause injury to the insurers. While fraud does not require actual injury to the victim, it does require “that some actual harm or injury was contemplated by the schemer.” United States v. D'Amato, 39 F.3d 1249, 1257 (2d Cir.1994) (citation omitted) (emphasis in original); see also United States v. Starr, 816 F.2d 94, 98 (2d Cir.1987) (“[The Government] must, at a minimum, prove that defendants contemplated some actual harm or injury to their victims. Only a showing of intended harm will satisfy the element of fraudulent intent.”). Relying on Judge Sifton’s reasoning in State Farm Mut. Auto. Ins. Co. v. Mallela, 175 F.Supp.2d 401 (E.D.N.Y.2001) (“Mallela I ”), Defendants contend that “there can be no injury because the insurer has an underlying obligation — unrelieved by Regulation 65-3.16(a)(12) or any other provision of New York Law — to make direct payment to the insured for treatment rendered by a licensed professional.” (Zayonts Mem. at 15.) When a patient assigns his or her claim to a fraudulently incorporated PC, Defendants argue, the PC’s ineligibility to receive payment (by virtue of the regulation) results in a “windfall” to the insurer, and “[windfalls are not injuries.” (Id.) This argument lacks merit, most importantly because it fails to account adequately for the New York Court of Appeals’ 2005 decision in Mallela. There, the Court of Appeals definitively held that, as a matter of New York law, fraudulently incorporated PCs “are not entitled to reimbursement” by insurers. 4 N.Y.3d at 320, 794 N.Y.S.2d 700, 827 N.E.2d 758. Thus, irrespective of whether a patient would be entitled to reimbursement if he had not assigned his claim to a PC, it is clear (and has been clear since 2005) that where such an assignment has occurred, and where the PC is not owned by a licensed professional, an insurer has a right to refuse payment on the claim. A misstatement about a PC’s ownership, if made with the intent to deceive the insurer into making payment it would otherwise withhold, is a misstatement made with the intent to cause injury to the insurer. Whether properly characterized as a “windfall” or not, the insurer’s entitlement to withhold reimbursement in these circumstances is an interest in money or property, the deprivation of which can be an injury under the fraud statutes. For these reasons, the cases cited by Defendants — in which no injury to the victim was intended or contemplated — are inapposite. Cf. Starr, 816 F.2d at 98 (no fraud where the alleged victims received the benefit of the bargain); United States v. Novak, 443 F.3d 150, 156 (2006) (same); United States v. Regent Office Supply Co., 421 F.2d 1174, 1179 (2d Cir.1970) (a business’s making of “false representations not directed to the quality, adequacy or price of goods to be sold, or otherwise to the nature of the bargain,” but which instead are collateral to the sale, does not constitute a scheme to defraud). The fact that Mallela was a civil case is simply beside the point, as New York law, as construed by the New York Court of Appeals in Mallela, does not create the substantive federal offenses at issue. Rather, the Court here looks to New York law simply to determine whether a material misrepresentation has been made and whether it was made with the intent to defraud. On those issues, Mallela is crystal clear. 3. Property Interest of Insurers Defendant Danilovich argues that the fraudulent incorporation theory is legally insufficient for a different reason: that an insurer’s right to withhold payment is not a cognizable property interest under the mail fraud statute. Because the insurer’s right to withhold funds from layperson-owned PCs is a non-discretionary obligation, he argues, it does not implicate the insurer’s “right to control” its assets, as contemplated by the line of Second Circuit decisions recognizing deprivations of such a “right to control” as satisfying the “property” element of the mail fraud statute. See, e.g., United States v. Mittelstaedt, 31 F.3d 1208, 1217 (2d Cir.1994). The Indictment, however, does not rely on a deprivation of the insurers’ “right to control” their property. Rather, it rests simply on the alleged deprivation of their monetary interest in nonpayment of claims — where PC-claimants are “ineligible” for payment under New York law. That monetary interest is a legally cognizable interest in money or property under the mail fraud statute. Danilovich also argues that the insurers’ interest in nonpayment is based on a state regulation promulgated for public policy reasons, conferring only an “incidental benefit” on insurers. (Danilovich Mem. at 6-7.) But the fact that the insurer’s interest arises from a state regulation (as construed by the New York Court of Appeals in Mallela) does not make it any less of a cognizable interest in money or property. Here, that interest is tangible and economic — distinguishing it from the state’s interest in video poker licenses considered by the Supreme Court in Cleveland v. United States, 531 U.S. 12, 121 S.Ct. 365, 148 L.Ed.2d 221 (2000). Compare id. at 22, 121 S.Ct. 365 (processing fee received by state as part a regulatory regime not sufficient to establish a property interest) with Pasquantino v. United States, 544 U.S. 349, 355-56, 125 S.Ct. 1766, 161 L.Ed.2d 619 (2005) (the right to collect excise tax constitutes a property interest, because it is a “straightforward ‘economic’ interest”). Moreover, Danilovich’s contention that the regulation’s benefit to insurers “is designed solely to further the State’s interest in deterring the unauthorized practice of medicine” (Danilovich Mem. at 6) is belied by the New York Court of Appeals’ discussion of the applicable regulation in Mallela. As the Court noted, the regulation was promulgated “to combat rapidly growing incidences of fraud in the no-fault regime, fraud that [the Superintendent] has identified as correlative with the corporate practice of medicine by nonphysicians.” 4 N.Y.3d at 320 n. 2, 794 N.Y.S.2d 700, 827 N.E.2d 758. The phrase “fraud in the no-fault regime” is a reference to fraudulent claims made to insurers, as suggested by the Court’s reference to “our State’s prohibition against lay ownership of shares in medical corporations (and the accompanying potential for fraud).” Id. at 321, 794 N.Y.S.2d 700, 827 N.E.2d 758. Thus, while the regulation was indeed promulgated for public policy reasons, among those reasons was the goal of combating a type of fraud whose immediate victim is insurers. C. Conclusion For the foregoing reasons, Defendants’ motion to dismiss the fraudulent incorporation theory from the indictment is denied. II. Motion to Suppress Evidence Seized from the Tri-State Search The Fourth Amendment commands that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. Amend. IV. Thus, the Warrants Clause both “requires particularity and forbids over-breadth.” United States v. Cioffi, 668 F.Supp.2d 385, 390 (E.D.N.Y.2009). “Although somewhat similar in focus, these are two distinct legal issues: (1) whether the items listed as ‘to be seized’ in the warrant were overbroad because they lacked probable cause and (2) whether the warrant was sufficiently particularized on its face to provide the necessary guidelines for the search by the executing officers.” United States v. Hernandez, No. 09 Cr. 625, 2010 WL 26544, at *7 (S.D.N.Y. Jan. 6, 2010) (citations omitted). Arguing that the Government violated both of these requirements, Defendants Vladislav Zaretskiy, Yuriy Zayonts, and Mikhail Kremerman have moved to suppress all evidence seized from the offices of Tri-State Billing Corp. (“Tri-State”) during a search conducted pursuant to a warrant on February 29, 2012. A. Background On February 27, 2012, Magistrate Judge Cheryl Poliak of the Eastern District of New York issued search warrants for six premises, including Tri-State. Probable cause for the Tri-State warrant was based upon the affidavit of Michael D. Kelley, a special agent with the Federal Bureau of Investigation, Eurasian Organized Crime Squad (“the Kelley Affidavit”). The TriState warrant appears to have been issued based upon two separate sections of the Kelley Affidavit, located in Paragraphs 5 and 12. Paragraph 5 of the Kelley Affidavit states in relevant part: h. In order to handle the significant number of bills and paychecks, some members of the scheme established billing and collection companies, usually under the auspices of a law office. These entities handle all of the paperwork for No-Fault Clinics, and also deal with any disputes or arbitration that arise from the fraudulent billing. In order to manage the billing and collections for the clinics, the members of the scheme often obtain signature stamps from the incorporating medical professionals for the clinics so that they can bypass the step needed to get the signature of the licensed medical professional. In truth, the members of the scheme who operate the billing and collections entities actually control the clinics, so that signature stamp is a necessary piece of equipment to effectively perpetuate [sic ] the fraud. Paragraph 12 of the Kelley Affidavit, the sole paragraph concerning the probable cause for searching “Premises # 2” (i.e. Tri-State) in particular, states: a. CW-1 reports that he knows that ZAYONTS and KREMERMAN maintain their billing for their Modality Clinics at PREMISES #2. CW-1 knows this, in part, because CW-1 has met with ZAYONTS and KREMERMAN at that location on several occasions, most recently on February 1, 2012. In fact, CW-1 reports that he received kickbacks from the Modalities controlled by ZAYONTS and KREMERMAN at PREMISES # 2. b. Yet another cooperating witness (“CW-3”), who was arrested on bank fraud charges, confirms that CW-3 regularly cashed checks for ZAYONTS, and that ZAYONTS controls a business location at 28 Dooley Street (PREMISES # 2) which is involved in billing. The Kelley Affidavit was not incorporated by reference into the Tri-State warrant. “Attachment A,” the sole attachment to the Tri-State warrant, lists the “Items to Be Searched For and Seized.” Those items are as follows: 1. Bank account information; 2. Ledgers documenting patient medical treatment, tests provided, and other records related to patient care; 3. Signature stamps; 4. Calendars and patient appointment records; 5. Cellphones of TARGET SUBJECTS found at SUBJECT PREMISES; 6. Checks, cash, and other financial instruments; 7. Computers; 8. Thumb drives; 9. In order to search for the items described above that may be maintained in electronic media, law enforcement personnel are authorized to search, copy, image and seize the following items for either on site or off site review: 1. Any computer equipment and storage device capable of being used to commit, further or store evidence of the federal criminal offenses of wire fraud; mail fraud; bank fraud; health care fraud; and/or money laundering; 2. Any computer equipment used to facilitate the transmission, creation, display, encoding or storage of data, including word processing equipment, modems, docking stations, monitors, printers, plotters, encryption devices, and optical scanners; 3. Any magnetic electronic or optical storage device capable of storing data, such as floppy disks, hard disks, tapes, CD-ROMs, CD-R, CD-RWs, DVDs, optical disks, printer or memory buffers, smart cards, PC cards, memory calculators, electronic dialers, electronic notebooks, and personal digital assistants; 4. Any documentation, operating logs and reference manuals regarding the operation of the computer equipment, storage devices or software; 5. Any applications, utility programs, compilers, interpreters, and other software used to facilitate direct or indirect communication with the computer hardware, storage device or data to be searched; 6. Any physical keys, encryption devices, dongles, and similar physical items that are necessary to gain access to the computer equipment, storage devices or data; 7. Any passwords, password files, test keys, encryption codes or other information or other information necessary to access the computer equipment, storage devices or data; and 8. Files, records, programs, logs, electronic communications, scanning programs, financial records, hacking software, routing configuration software. B. Standing “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.” Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) (citing cases). Thus, any defendant challenging a warrant must show a reasonable expectation of privacy in the place searched and the items seized. “The question of whether a corporate officer has a reasonable expectation of privacy to challenge a search of business premises focuses principally on whether he has made a sufficient showing of a possessory or proprietary interest in the area searched.” United States v. Chuang, 897 F.2d 646 (2d Cir.1990); see also United States v. Kazarian, No. 10 Cr. 895, 2012 WL 1810214, at *18 (S.D.N.Y. May 18, 2012) (“Where the premises searched is a business, defendants seeking suppression must establish both that they are associated with the business and that they have a legitimate expectation of privacy in the part of the business that was searched.”). Tri-State was incorporated in New York State on April 7, 2011, and Zaretskiy is its sole shareholder and President. (Dkt. No. 456, Ex. A.) Kremerman and Zayonts have submitted sworn declarations attesting that they both “participated in managing and running the operations of Tri-State Billing Corp. and shared [Zaretskiy’s] interests in the company.” (Dkt. No. 535, Exs. 1-2.) These three Defendants therefore have standing to challenge the TriState search. No other Defendants in this action have demonstrated a possessory or proprietary interest in Tri-State, or any other basis for a reasonable expectation of privacy in the office. Thus, to the extent that other Defendants in this case request the suppression of evidence seized pursuant to the warrant that purported to authorize a search of Tri-State, their motions are denied. C. Particularity The Fourth Amendment requires that warrants state with particularity the items to be searched and seized. This requirement traces directly back to the Framers’ experience of tyranny before this Nation’s founding: “The Fourth Amendment was a response to the English Crown’s use of general warrants, which often allowed royal officials to search and seize whatever and whomever they pleased while investigating crimes or affronts to the Crown.... The principal evil of the general warrant was addressed by the Fourth Amendment’s particularity requirement.” Ashcroft v. al-Kidd, — U.S.-, 131 S.Ct. 2074, 2084, 179 L.Ed.2d 1149 (2011). Though born of specific historical experiences, the particularity requirement retains modern vitality. Its core purposes include “preventing general searches, preventing the seizure of objects upon the mistaken assumption that they fall within the magistrate’s authorization, and preventing the issuance of warrants without a substantial factual basis.” United States v. Young, 745 F.2d 733, 759 (2d Cir.1984). Law enforcement agents are thus barred from executing warrants that purport to authorize “a general, exploratory rummaging in a person’s belongings.” Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); see also Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987) (“By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.”); United States v. George, 975 F.2d 72, 74 (2d Cir.1992) (“Because everyone has some kind of secret or other, most people are anxious that their personal privacy be respected. For that very human reason the general warrant, permitting police agents to ransack one’s personal belongings, has long been considered abhorrent to fundamental notions of privacy and liberty.”) Courts implement the particularity requirement by insisting that warrants not “leave to the unguided discretion of the officers executing the warrant the decision as to what items may be seized.” United States v. Riley, 906 F.2d 841, 844 (2d Cir.1990) (citations omitted). In other words, a warrant must contain sufficient specificity “to permit the rational exercise of judgment [by the executing officers] in selecting what items to seize.” United States v. Ski Yan Liu, 239 F.3d 138, 140 (2d Cir.2000) (citation omitted); see also George, 975 F.2d at 75 (explaining that warrant is sufficiently particular only if it “enable[s] the executing officer to ascertain and identify with reasonable certainty those items that the magistrate has authorized him to seize”). It is clearly established that supplementary documents, including affidavits submitted to a magistrate judge to demonstrate probable cause, can particularize a warrant only if attached and incorporated into the warrant by reference. See United States v. Rosa, 626 F.3d 56, 64 (2d Cir.2010) (“[W]e may no longer rely on unincorporated, unattached supporting documents to cure an otherwise defective search warrant.”); George, 975 F.2d at 76 (“Resort to an affidavit to remedy a warrant’s lack of particularity is only available when it is incorporated by reference in the warrant itself and attached to it.”); cf. Groh v. Ramirez, 540 U.S. 551, 557, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) (noting that “[t]he Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents”); United States v. Waker, 463 F.Supp.2d 348, 363 (W.D.N.Y.2006) (reading a warrant as including facts set forth in an affidavit where the warrant stated: “see attached Affidavit as to of [sic] Items to be Seized, all of which are fruits, evidence and instrumentalities of violations of 18 U.S.C. § 922(g)(1) all of which are more fully described in the affidavit filed in support of this warrant which is incorporated herein by reference” (emphasis added)). In the Second Circuit, there is no settled formula for determining whether a warrant lacks particularity. Nonetheless, in a thoughtful and scholarly opinion, Judge Karas has noted “two factors that, above others, tend to define a warrant’s insufficient particularity.” United States v. Vilar, No. 05 Cr. 621, 2007 WL 1075041, at *22 (S.D.N.Y. Apr. 4, 2007): First, warrants are generally found to be insufficiently particular where nothing on the face of the warrant tells the searching officers for what crime the search is being undertaken. Second, warrants will frequently lack particularity where they include a general, catchall paragraph or provision, often one authorizing the seizure of any or all records of a particular type. Id. (quotation marks, citations, and alterations omitted). Courts do not require that a defendant demonstrate both of these deficiencies; rather, one or the other will typically render a warrant unconstitutional. See George, 975 F.2d at 75-76 (holding that warrant lacked particularity because it does not alert the searching officers to the crimes at issue); United States v. Buck, 813 F.2d 588, 591 (2d Cir.1987) (holding warrant lacked particularity because it contained catch-all provisions). The factors identified by Judge Karas are not exhaustive: lack of particularity may result from, or at least be suggested by, other circumstance-specific considerations. For example, “[i]n a number of out-of-circuit decisions, courts have found warrants for the seizure of records constitutionally deficient where they imposed too wide a time frame or failed to include one altogether.” United States v. Cohan, 628 F.Supp.2d 355, 365-66 (E.D.N.Y.2009) (citations omitted). While the Second Circuit has not yet definitively addressed the necessity of temporal limitations, “[ajmongst the district courts in this circuit ... there is general agreement that a time frame is relevant, [though] there is no apparent consensus as to when one is required.” Id. at 366 (collecting cases) (emphasis in original). 1. Limitations by Crime Nothing on the face of the TriState warrant informs the searching officer for which crimes the search is being undertaken. Accord United States v. Hickey, 16 F.Supp.2d 223, 239 (E.D.N.Y.1998) (warrants lacked particularity where “none identified the nature of the suspected wrongdoing triggering the searches”), motion for reconsideration granted on other grounds, 48 F.Supp.2d 214 (E.D.N.Y.1998); Roberts v. United States, 656 F.Supp. 929, 935 (S.D.N.Y.1987) (warrant containing “no restriction to any specific wrongful transaction to which documents were related” lacked sufficient particularity), rev’d on other grounds, 852 F.2d 671 (2d Cir.1988). The warrant first enumerates eight categories of “Items to be Searched For and Seized,” including bank account information, ledgers documenting patient medical treatment, computers, signature stamps, calendars and other patient appointment records, and financial instruments. At no point prior to or during the enumeration of these eight items does the warrant offer any indication of the relevant criminal allegations. The officers are thus directed to these categories without a single word of guidance regarding the type of criminal offense under investigation. Only in a single subsection of Item 9 does the warrant refer to any criminal offenses, namely “wire fraud; mail fraud; bank fraud; health care fraud; and/or money laundering.” The Government asserts that the language of Item 9(1) of the warrant provides notice of the “statutes and conduct that give rise to the search and seizure” at issue. (Gov’t Mem. at 82; see also id. at 72 n.38 (“While Attachment A could have been worded more carefully, a reasonable law enforcement [officer] would have understood that the description of the crimes in paragraph 9(1) of Attachment A was applicable to all of the search.”).) The Court disagrees. As the Tri-State warrant explains, Item 9 is meant to guide the officer in “searching] for the items described above that may be maintained in electronic media ” (emphasis added). By clear implication, Item 9 does not pertain to any physical evidence. As a result, to the extent that Items 1-8 consist of non-electronic evidence — and Items 1-6 are all either physical evidence or the kind of evidence that may exist in either physical or electronic form — nothing in Item 9 limits the scope of the warrant as to those items by specifying criminal offenses. Thus, an officer tasked only with conducting a physical search might well miss this supposed limit, as might any officer who reads the warrant in a straightforward fashion and observes that the reference to these federal crimes is confined to a specific subsection of the electronic evidence. Accord United States v. Otero, 563 F.3d 1127, 1132-33 (10th Cir.2009) (noting that, when the items to be searched and seized are separated into different sections, the structure of the warrant may prevent an incorporation of a particular limitation to the remainder of the warrant); see also id. at 1133 (“There is no explicit or even implicit incorporation of the limitations of the first five paragraphs. The computer-related paragraphs do not even refer to the rest of the warrant. In fact, the presence of limitations in each of the first five paragraphs but absence in the second four suggests that the computer searches are not subject to those limitations”). Further, even as to electronic evidence, Item 9 does not provide any actual limitation based on criminal offense. Item 9 begins by stating that, “[i]n order to search for the items described above that may be maintained in electronic media, law enforcement personnel are authorized to search, copy, image and seize the following items for either on site or off site review” (emphasis added). The warrant then contains eight subsections, seven of which lack any reference to any federal criminal offense. These eight subsections, however, each afford the searching offers an individually sufficient basis for searching and seizing items found at Tri-State. This is made apparent by the fact that each subsection refers to “Any” evidence of a particular sort, and the fact that these subsections are linked conjunctively by “and” at the end of subsection 7. Thus, “[i]n order to search for [Items 1-8] that may be maintained in electronic media,” Item 9 allows the searching officers to seize any of eight different kinds of evidence, and only one out of those eight evidentiary categories refers to a federal criminal offense. The other seven subsections, which allow seizure of virtually any electronics, as well as any documentation, reference manuals, software, physical keys, encryption devices, passwords, financial records, and electronic communication that might bear on the search and seizure of electronic evidence, make no reference to any federal crime and do not incorporate by reference the federal crimes described in subsection 9(1). In other words, Items 9(2) through 9(8) allow for extremely broad electronic searches, and are, by the logic of the warrant, not narrowed by any references to the crimes committed. An officer would see no offense-based limit on her ability to seizure virtually any electronics found on the premises. Moreover, as is explained in more detail infra, Item 7 — “Computers”—and Item 8 — “Thumb Drives” — are not limited by Item 9, as computers and flash drives cannot be “maintained in electronic media.” Thus, at most, Item 9(1) limits an officer’s ability to search and seize electronic evidence aside from computers and thumb drives. Although the Government compares the language putatively limiting the language in the Tri-State warrant to language in three other warrants recently discussed by courts in this district, the differences between those warrants and this one illuminate the serious particularity problem here. (See Gov’t Mem. at 82 (likening the Tri-State warrant to those discussed in United States v. Hernandez, United States v. Dupree, and United States v. Levy). In United States v. Hernandez, Judge Baer found sufficient particularity in warrants that described the property to be searched for and seized as “Evidence of crimes; contraband, fruits of crimes, or other items illegally possessed; or property designed for use, intended for use, or used in committing violations of [18 U.S.C. §§ 187 (false/fictitious/fraudulent claims against the United States), 1028 (identification document fraud), 1341 (mail fraud), 1342 (use of fictitious names in schemes via U.S. mail), 1344 (bank fraud), conspiracy to do the same, and 26 U.S.C. § 7206 (tax-related fraud and false statements), and conspiracy to do the same].” 2010 WL 26544, at *10. Because the “warrant itself indicate[d] that only documents related to violations of various criminal fraud statutes related to identity, mail, and tax fraud” should be searched for and seized, and the categories included in an attachment were “all tax or business accounting related sorts of items,” Judge Baer concluded that “the warrant for the Cove Street Residence directed and limited executing agents to particular types of tax-related business documents.” Id. Thus, where a warrant indicated that the whole search was based on suspicion of certain kinds of fraud, and then instructed the searching officers to obtain documents “related to violations” of the specified statutes, Judge Baer concluded that the search was limited by the indicated offenses. Judge Crotty relied upon comparable reasoning in United States v. Levy, where the search warrant “identified the Levys’ residence as the property to be searched, and stated that it was believed to conceal ‘[e]vidence, [f]ruits, and instrumentalities of criminal violations of Title 18, United States Code, Sections 1343 and 1349, as further described in ‘Attachment B.’ ” No. 11 Cr. 62, 2013 WL 664712, at *2 (S.D.N.Y. Feb. 25, 2013). Attachment B, in turn, “described the property to be seized as: Evidence, fruits, and instrumentalities of violations of Title 18, United States Code, Sections 1343 (Wire Fraud), 1349 (Conspiracy to Commit Wire Fraud), and 1956 and 1957 (Money Laundering),” and then specifically identified certain categories of such evidence. Id. Judge Crotty concluded that, “[b]y specifically identifying the statutes and conduct that gave rise to the search and seizure, the Search Warrant sufficiently identified the suspected crimes for which there was probable cause, and which the materials to be seized evidenced.” Id. at *9. Again, the specified offenses covered the entire search warrant and the warrant plainly indicated that the evidence to be seized had to relate to those crimes. Similarly, in United States v. Dupree, 781 F.Supp.2d 115 (E.D.N.Y.2011), Judge Matsumoto concluded that a warrant did not suffer from this form of non-particularity because “section (1) of Exhibit A to the search warrant clearly states that the ‘[t]he items to be seized are evidence or instrumentalities of violations of 18 U.S.C. §§ 1341, 1343, 1344 and 1349....’” Id. at 149. The warrant also “enumerated and particularized” the different categories of documents it covered, and “thus describe[ed] the types of evidentiary documentation of the listed offenses.” Id. Because the warrant “explicitly made clear to the executing officers that the offenses being investigated in this case are mail, wire, and bank fraud, and attempts and conspiracy to commit the same, pursuant to 18 U.S.C. §§ 1341, 1343, 1344 and 1349 and that the items to be searched and seized were evidence of those offenses,” Judge Matsumoto concluded that the searching officers had received sufficient guidance. Id. at 149-150. Unlike the warrants in Hernandez, Levy, and Dupree, the Tri-State warrant does not direct searching officers to seize evidence related to, or concerning, any particular crime or type of crime. By comparison, for the reasons set forth above, as to all or nearly all of the evidence whose seizure was authorized by the Tri-State warrant, the warrant simply says nothing about the criminal offenses under investigation. Indeed, even if language of Item 9(1) — the sub-section that does refer to specific offenses — somehow applied to each and every category of materials specified in the warrant, that language states only that the officers may seize all of the electronic material “capable of being used to commit, further or store evidence of the federal criminal offenses of wire fraud; mail fraud; bank fraud; health care fraud; and/or money laundering.” A capability requirement is not the same as a relevance requirement; indeed, it is hard to imagine what electronic material is not “capable” of being used to further or store evidence of any of these statutes. The Tri-State warrant is thus quite different in kind from the warrants upon which the Government relies to assert sufficient particularity. In sum, there is no offense indicated as to any physical evidence. There is no offense indicated as to computers and thumb drives (Items 7 and 8). There is no offense indicated as to seven subsections of material that may be searched for and seized “[i]n order to search for the items described above that may be maintained in electronic media.” There is no relevance requirement imposed on the single subsection of Item 9 that does mention specific offenses. And as to that single subsection, it is not clear that it authorizes officers to search for and seize anything that could not be searched for and seized pursuant to one or another of the broad categories set forth elsewhere in the warrant. Even acknowledging that “[t]he nature of [this] crime ... may require a broad search,” Dupree, 781 F.Supp.2d at 149, there is a difference between a broad search based on a valid warrant and a general search based on a warrant that, on any reasonable interpretation, is silent as to the federal criminal offenses for which evidence is sought. 2. The Scope of the Categories to Be Searched and Seized The Tri-State warrant contains excessively broad categories of items to be searched for and seized, and thereby permits a searching officer to rummage through and seize nearly any conceivable paper and electronic document at TriState. This failing provides an independent basis for deeming the warrant deficient. See Buck, 813 F.2d at 591 (finding impermissibly broad a warrant rife with “general boilerplate terms, without either explicit or implicit limitation on the scope of the search”); see also Wheeler v. City of Lansing, 660 F.3d 931, 941 (6th Cir.2011) (in the context of a search of a house for stolen goods, categories in a warrant are overbroad where they “provid[e] no basis to distinguish the stolen items from [the defendant’s] own personal property”); Hernandez, 2010 WL 26544, at *10 (the categories of items to be seized from a business lack particularity where they “could have encompassed most all of the business records on the premises”). The Tri-State warrant allows for the seizure of categories of materials that other courts have recognized to be impermissibly broad. For instance, it covers “[c]hecks, cash, and other financial instruments” without indicating any individuals, entities, offenses, time frame, or relevance. See United States v. Gigante, 979 F.Supp. 959, 966-67 (S.D.N.Y.1997) (describing as “broad and vague” a warrant item authorizing seizure of all “financial, banking, safe deposit, investment, asset, tax, bookkeeping, and accounting records — along with underlying, supporting, and related documentation — of or referring or relating to [certain individual and entities]” where the warrant did not adequately specify to whom or what these items had to relate). The warrant also reaches all “calendars and patient appointment records,” without any indication of which calendars, which patients, which doctors, or which clinics were under investigation. See United States v. Lazar, 604 F.3d 230, 238 (6th Cir.2010) (evaluating a warrant permitting the seizure of all patient records from two medical offices and finding that “[a]s regards records of patients whose names did not appear on a patient list presented to the issuing Magistrate Judge, the facts of this case ... require suppression of those files. This facial deficiency was so evident, moreover, that no officer could reasonably presume the warrants valid”); United States v. SDI Future Health, Inc., 568 F.3d 684, 705 (9th Cir.2009) (“Category 24 — SDI’s rolodexes, address books, and calendars — amounts to the laziest of gestures in the direction of specificity ... this category practically begs the search team to find and to seize the contact information of every person who ever dealt with SDI.”). By the same token, in referring to “[l]edgers documenting patient medical treatment, tests provided, and other records related to patient care,” the Tri-State warrant authorizes the officers to search through and seize virtually any such document in the office, with no limitation as to offense, patient, time period, clinic, or doctor. Next, the warrant indiscriminately permits the search of all “Computers” and “Thumb drives.” Courts have disallowed such broad, un-partieularized grants of authority to search teams. See Rosa, 626 F.3d at 58 (a warrant permitting officers to search, inter alia, “computer equipment” and “electronic digital storage media” lacks particularity); United States v. Graziano, 558 F.Supp.2d 304, 316 (E.D.N.Y.2008) (“[Tjhere are Fourth Amendment limits to every search that apply with equal force to searches of computers. Thus, although courts are ill-suited to micromanage in advance how the computer will be searched, law enforcement must establish the basis for searching the computer and particularize the evidence being sought during such search.”); United States v. Hunter, 13 F.Supp.2d 574, 584 (D.Vt.1998) (“Section IV simply called for the seizure of ‘[a]ll computers ... [a]ll computer storage devices ... [and a]ll computer software systems,’ detailing only examples of what types of computer paraphernalia were included. This section is a catch-all paragraph, which lacks sufficient limitation.” (record citation omitted)). The Tri-State warrant also permits the seizure of “Cellphones of TARGET SUBJECTS found at SUBJECT PREMISES,” a category that would have been sufficiently narrow had the warrant incorporated by reference the Kelley Affidavit. As it stands, however, neither the warrant nor Attachment A defines “TARGET SUBJECTS,” leaving the officers executing the warrant to assign their own meaning to this term. The upshot is that the searching officers enjoyed impermissibly broad discretion to seize and peruse, carte blanche, the cell phone of any person found in Tri-State at the time of the search, be they target subjects, unwitting employees, or innocent customers. In addition to the breadth of these categories, several of them also suffer from ambiguity. For example, the reference to “financial instruments” could afford a reasonable officer extremely broad discretion in deciding what items fall within this term’s scope. Indeed, that point was illustrated at the suppression hearing, where Agent Steven Naum acknowledged that he was not sure whether the reference to financial instruments would have authorized the seizure of financial contracts, insurance policies, or titles to real estate. He did think, however, that it would cover ATM cards and credit cards. That uncertainty is understandable, especially given that the warrant provides no context, reference to certain crimes, indications of target subjects, or any other information that would narrow an ambiguous term’s vast sweep. At bottom, missing from all of these categories — and from the warrant in general — are any instructions to the officers to search for and seize records related to the five modality clinics at the center of the alleged conspiracy in question, related to particular suspects in the case, limited to the time period of the suspected conspiracy, related to the crimes alleged, or any other limits. Together, the Tri-State warrant authorized the officers to search for and seize almost everything that one could expect to find at a billing office: any cash or checks, any document that might be considered to be some sort of “financial instrument,” all patient records and everything else related to patient records, and all bank information. In addition to all that physical evidence, the warrant authorized the unlimited search and seizure of all computers and thumb drives, as well as virtually anything electronic and anything related to the use or operation of those electronics. The warrant also allowed the officers to seize the cell phones of unspecified “TARGET SUBJECTS,” which on the face of the warrant provided the officers with discretion to seize the phone of any person found on the premises. As explained below, the warrant lacked probable cause to justify the breadth of this search. Of immediate concern here, however, is the fact that it conferred on the searching officers discretion to seize virtually everything short of any diaries, clothing, and love letters that employees may have brought to work. The broad, undefined, and ambiguous terms of this search warrant render it, for all practical purposes, a prohibited general warrant to search Tri-State for evidence of a crime. 3. Failure to Temporally Limit the Warrant Also missing from the Tri-State warrant is any temporal limitation on the items to be searched. See Hernandez, 2010 WL 26544, at *11 (noting that a “temporal limitation” is an “indie[ium] of particularity” (citing United States v. Capital Grp., Inc., 211 F.R.D. 31, 58 (D.Conn.2002)). As Judge Hall has observed, “[a] warrant’s failure to include a time limitation, where such limiting information is available and the warrant is otherwise wide-ranging, may render it insufficiently particular.” United States v. Costin, No. 5 Cr. 38, 2006 WL 2522377, at *12 (D.Conn. July 31, 2006) (collecting cases); accord United States v. Abrams, 615 F.2d 541, 545 (1st Cir.1980) (holding, in a case concerning the search of billing records at doctors’ offices for evidence of Medicare and Medicaid fraud, that “[a] time frame should also have been incorporated into the warrant”). Although “[t]he complexity and duration of the alleged criminal activities” of this case may render temporal limitation “less significant,” Hernandez, 2010 WL 26544, at *11, the absence of such a limit reinforces the Court’s conclusion that the Tri-State warrant functioned as a general warrant. See Vilar, 2007 WL 1075041, at *23 (noting that the “patent lack of particularity is only compounded by the absence of any date restriction on the items to be seized”). 4. Confusing Provisions in the Tri-State Warrant An additional basis for concluding that the Tri-State warrant lacked particularity rests in the confusing relationship between Item 9 and the remainder of the warrant. Specifically, Item 9 indicates that law enforcement personnel may search for and seize broad categories of electronic equipment and related material “to search for the items described above that may be maintained in electronic media.” The clear suggestion is that the search of electronic media is somehow limited by Item 9 and its various subsection — even though it is doubtful that the combination of those broad subsections actually imposes any limit. But then the warrant also separately allows for the search of “[computers” and “[t]humb drives,” categories which are not limited by Item 9’s plain language at all and to which it would be nonsensical to apply Item 9. The oddity of separately including unlimited terms for “computers” and “thumb drives,” and then including a laundry list of purportedly limiting electronics-related provisions that partly overlap with those blanket terms, could well create confusion on the part of an officer committed to properly executing the warrant. See Abrams, 615 F.2d at 550 (Campbell, J., concurring) (noting that a warrant description may be “confusing, hence lacking in particularity”). Perhaps the law enforcement officers tasked with searching the computers and thumb drives would have assumed that those searches are limited to the documents enumerated in the other categories of the warrant — but then again, perhaps not. On the face of the warrant, it is unclear how these provisions interact, though one potential — albeit bizarre — reconciliation would be that computers and thumb drives are subject to unlimited search and seizure, while all other electronics and related documents may be searched and seized for evidence of the sort contained in Items 1-6. In any event, the critical point is that these confusing warrant provisions leave all such questions to the discretion of the searching officers and do not provide guidance. As the George Court explained, the very purpose of the particularity requirement is to “curtail! ] the officers’ discretion when executing the warrant....” 975 F.2d at 76; see also Shi Yan Liu, 239 F.3d at 140 (noting that the particularity requirement mandates sufficient specificity “to permit the rational exercise of judgment [by the executing officers] in selecting what items to seize”). In addition to the reasons set forth supra, because the Tri-State warrant’s lack of clarity fails to coherently guide discretion in the search of electronics, it violates the Fourth Amendment. 5. The All-Records Exception Under certain, limited circumstances, a warrant lacking in particularity can be saved by the so-called “all records exception.” “Under that exception, all records of a business may be seized if there is probable cause to believe that the entire operation is permeated with fraud.” Hickey, 16 F.Supp.2d at 240 (collecting cases); see also United States v. D'Amico, 734 F.Supp.2d 321, 360 (S.D.N.Y.2010) (“When there is probable cause to believe that an entire business is ‘pervaded’ or ‘permeated’ with fraud, seizure of all records of the business is appropriate, and broad language used in a search warrant will not offend the particularity requirement.” (citations omitted)). “The principle is not so much an ‘exception’ to the particularity requirement of the Fourth Amendment as a recognition that a warrant — no matter how broad — is, nonetheless, legitimate if its scope does not exceed the probable cause upon which it is based. The more extensive the probable wrongdoing, the greater the permissible breadth of the warrant.” Hickey, 16 F.Supp.2d at 240. To trigger the all records exception, “it is not necessary that the affidavit supporting the search warrant set forth specific factual evidence demonstrating that every part of the enterprise in question is engaged in fraud.” United States v. Burke, 718 F.Supp. 1130, 1139 (S.D.N.Y.1989). “Rather, the affidavit need contain only sufficient factual evidence of fraudulent activity from which a magistrate could infer that those activities are just ‘the tip of the iceberg.’ ” Id. at 1139-40 (citation omitted). Nonetheless, to satisfy that evidentiary requirement, the Government must have provided the magistrate judge with sufficient probable cause to believe that the “entire [business] operation is a scam.” Id. at 1140 (emphasis added); accord Hickey, 16 F.Supp.2d at 241 (“The Fourth Amendment requires more than mere extrapolation to activate the [all records] principle. It may be that the crimes associated with the [fraud for which there was probable cause to search] are representative of the other activities of the defendant corporations, but perhaps not. A perusal of the information before the magistrate judge — and, indeed, the information available now — is simply too scant to permit such a determination.”) In cases where the all records exception has been applied, the affidavit submitted in support of the warrant contained detailed information that would provide reason to believe that all or nearly all of the business under investigation was illegal. For example, courts have applied the all records rule where government agencies received 250 complaints about an enterprise’s fraudulent activity and interviewed 20 former employees, see Burke, 718 F.Supp. at 1140 (discussing United States v. Brien, 617 F.2d 299 (1st Cir.1980)); where a defendant had used a variety of similar names for a single business premises, interviews with former employees and customers evidenced illegal activity, the defendant had been overheard using a false name on the business phone, and where the defendant’s manner of doing business suggested illegality, see United States v. Smith, No. 05 Cr. 293, 2007 WL 2088938, at *4 (W.D.N.Y. July 19, 2007); and where investig