USA v. Haney, et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
UNITED STATES OF AMERICA, 	)
)
Plaintiff, 	)
v. 	) 	No. 3:24-CR-113-TAV-JEM
)
TINA ROPER, 	)
)
Defendant. 	)
REPORT AND RECOMMENDATION
All pretrial motions are referred to the undersigned for disposition or recommendation as
appropriate. See 28 U.S.C. § 636(b). This case is before the undersigned on Defendant Tina
Roper’s Motion to Dismiss Indictment [Doc. 160].
Defendant Roper asks the Court to dismiss Count One of the Second Superseding
Indictment for four overarching reasons: (1) the prosecution of Defendant Roper is selective,
vindictive, and was unconstitutionally delayed [Doc. 160 p. 1; Doc. 197 pp. 7–13]; (2) the
Government cannot prove Defendant Roper’s culpability and, thus, its conduct in prosecuting her
is shocking and outrageous [Doc. 160 p. 2; Doc. 197 pp. 3–4]; (3) Defendant Roper was subject to
custodial interrogation without being advised of her rights under Miranda [Doc. 197 p. 2]; and
(4) officers executing the search warrant destroyed exculpatory evidence [id. at 7; see also
Doc. 160 p. 1 n.1 & n.2].
After careful consideration of the parties’ arguments and the relevant law, the undersigned
finds Defendant fails to demonstrate that the prosecution is selective, vindictive, or was
unnecessarily delayed. She likewise fails to show prosecutorial misconduct. Defendant fails to
show good cause for the untimely assertion of a Miranda violation and, regardless, it is not a basis
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for dismissal of the charges. Defendant also does not show good cause for the untimely exculpatory
evidence issue and fails to demonstrate that a video recording of the search of RHP would have
been exculpatory. Accordingly, the undersigned RECOMMENDS that the District Judge DENY
Defendant Roper’s Motion to Dismiss [Doc. 160].
I. 	BACKGROUND
The Second Superseding Indictment1 charges Defendant Roper, along with Codefendants
Tiffany Haney and Anne Warren with conspiring to commit health care fraud from August 2018
to October 2024, by submitting claims for “medicines not dispensed pursuant to a valid
prescription, as well as altered and forged prescriptions . . . for the purpose of executing a scheme
and artifice to defraud health care benefit programs” to obtain “millions of dollars” in payments
by false and fraudulent representations (Count One) [Doc. 127 ¶¶ 1, 19].
These charges arise in part from the search of Rocky Hill Pharmacy (“RHP”) on April 16,
2024, pursuant to a search warrant. Defendants Haney and Warren, who are pharmacists, were the
co-owners of RHP [Doc. 127 p. 2]. Defendant Roper, who is a pharmacy technician, worked at
RHP [Id.]. During the execution of the search warrant at RHP, agents seized computer records and
boxes 	of 	documents, 	including 	prescriptions 	[Doc. 	185-3 	pp. 	2–8; 	Doc. 	148-1 	p. 	3;
Doc. 195 pp. 38, 54]. They also seized the Defendants’ personal cell phones and the personal cell
phones of three other RHP employees [Doc. 185-3 pp. 2–8 (FBI Evidence Entry); Doc. 148-1 p. 2
(FBI Computer Analysis Response Team (“CART”) Report)]. Agents extracted data from the cell
phones on the premises of RHP and returned the cell phones to their owners [Id. at 2; Doc. 195,
Transcript, p. 35].
1 	On November 5, 2025, the Grand Jury charged Defendant Roper in a Third Superseding
Indictment [Doc. 217], but she has yet to be arraigned on those charges.
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On October 16, 2024, the Grand Jury indicted Defendants Haney and Warren2 for
conspiracy to commit health care fraud, making false statements relating to health care matters,
and aggravated identity theft [Doc. 3]. The Grand Jury returned a Superseding Indictment against
Defendants Haney and Warren on March 5, 2025, adding charges of conspiracy to commit money
laundering and money laundering [Doc. 73]. On May 21, 2025, the Grand Jury returned the Second
Superseding Indictment, which added Defendant Roper to the conspiracy to commit health care
fraud charged in Count One.3
Defendant Roper first appeared on May 22, 2025, and the Court set a June 12, 2025
deadline for pretrial motions [Doc. 130, Minutes]. In addition to moving to join in Codefendant
Haney’s Motion to Suppress [Doc. 138], Defendant Roper timely filed four pretrial motions,
including a Motion to Dismiss Indictment [Doc. 160], which set forth a list of grounds for dismissal
in two pages. The Government responded on June 26, 2025 [Doc. 170]. At a motion and
evidentiary hearing on August 12, 2025, defense counsel for Defendant Roper stated that the
Motion to Dismiss was potentially premature [Doc. 195 p. 5]. He asked to withdraw the motion
and refile it after further factual development [Id. at 5–6]. The Government objected to Defendant
refiling the motion without a showing of good cause [Id. at 6]. The undersigned granted Defendant
two weeks to either supplement the list of grounds set forth in the Motion to Dismiss or move to
withdraw it [Id. at 109–10]. On August 26, 2025, Defendant filed a supplemental brief [Doc. 197],
and the Government responded in opposition [Doc. 200]. The matter is now ripe for adjudication.
2 	RHP was charged in Count One but was subsequently dismissed from the case on the
Government’s motion [Doc. 186].
3 	The undersigned sets out a complete summary of the background of this case, including
Defendant Roper’s testimony on the search of RHP, in the Report and Recommendation on the
Defendants’ suppression issues [Doc. 204 pp. 4–8, 28–36].
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II. 	ANALYSIS
The Fifth Amendment secures for defendants the right to be tried upon an indictment issued
by a grand jury. U.S. Const. V. Defendant Roper brings four challenges to the Second Superseding
Indictment and the nature of the prosecution in this case.4 Defendant Roper faults her prosecution
as selective, vindictive, and unconstitutionally delayed [Doc. 160 p. 1; Doc. 197 pp. 7–13]. She
argues the Government cannot prove her culpability and, thus, its conduct in prosecuting her is
shocking and outrageous [Doc. 160 p. 2; Doc. 197 pp. 3–4]. Finally, she asserts she was subjected
to custodial interrogation without advice of rights [Doc. 197 p. 2], and that law enforcement
destroyed exculpatory evidence [id. at 7; see also Doc. 160 p. 1 n.1 & n.2].
The undersigned examines each of these challenges in turn and finds no basis to dismiss.5
4 	Defendant also summarily argues the Second Superseding Indictment is defective because
“it lacks specificity, constitutes an improper joinder and fails to state an offense” [Doc. 160 p. 1].
Defendant does not elaborate on these arguments and, thus, waives them. McPherson v. Kelsey,
125 F.3d 989, 995 (6th Cir. 1997) (“[I]ssues adverted to in a perfunctory manner, unaccompanied
by some effort at developed argumentation, are deemed waived.” (citations modified and
omitted)); see also United States v. Cole, 359 F.3d 420, 428 n.13 (6th Cir. 2004) (finding an
argument waived where the defendant “neglect[ed] to cite even one authority supporting his
constitutional argument” (citing McPherson, 125 F.3d at 995–96)). Defendant does not mention
the indictment’s specificity, improper joinder, or the failure to state an offense in her post-hearing
brief, nor does she cite to any case, law, or rule in support of her bare argument. The undersigned
previously determined that “the Second Superseding Indictment is sufficiently specific to inform
Defendants of the nature of the charges, to illuminate their alleged roles in the offenses, and to
permit them to prepare for trial” [Doc. 202 p. 7]. And Defendant is now charged in a Third
Superseding Indictment [Doc. 217]. Accordingly, Defendant Roper’s arguments on the sufficiency
of the Second Superseding Indictment are waived and moot.
5 	While Defendant raised her arguments in the context of the Second Superseding Indictment
and has now been charged in a Third Superseding Indictment, Defendant’s challenges generally
relate to her being brought into the case and events that occurred in connection with the search of
RHP. The undersigned therefore finds it appropriate to consider these challenges despite the filing
of the Third Superseding Indictment.
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A. 	Nature of Prosecution
Defendant argues her prosecution is selective, vindictive, and was unconstitutionally
delayed [Doc. 160 pp. 1–2; Doc. 197 pp. 7–13]. Defendant maintains that the Government sought
charges against her, the only RHP employee charged along with the pharmacy’s owners who are
pharmacists, seven months after the initial indictment, in response to a review of an advance copy
of Defendant Haney’s suppression motion [Doc. 197 pp. 10–13]. She contends that the
Government brought charges against her to coerce her codefendants and delay the trial
[Doc. 160 p. 1].
1. 	Selective Prosecution
“A selective-prosecution claim is an assertion that the prosecutor has brought charges
based on some factor prohibited by the Constitution; the claim is thus rooted in equal protection
principles.” United States v. Merriweather, 728 F. App’x 498, 506 (6th Cir. 2018) (citations
omitted). The Court presumes that a prosecutor exercises his or her charging decisions properly,
and defendants shoulder a heavy burden to show otherwise. Id. at 507 (citing United States v.
Armstrong, 517 U.S. 456, 464 (1996)). “‘[S]o long as the prosecutor has probable cause to believe
that the accused committed an offense defined by statute, the decision whether or not to prosecute
. . . generally rests entirely in his discretion.’” Id. (quoting Armstrong, 517 U.S. at 464) (alteration
in original). The prosecution’s charging discretion, however, may not be exercised for an
unconstitutional purpose, such as race or religion. Id. at 508. A defendant seeking to show selective
prosecution must demonstrate that the prosecution violates the equal protection of the law and
“must do so by proffering ‘clear evidence’ that the prosecutor’s policy had both a discriminatory
purpose and effect.” Id. (citing Armstrong, 517 U.S. at 465).
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Here, Defendant shows neither a discriminatory purpose, nor a discriminatory effect. She
does not argue that her prosecution is based upon a constitutionally unjustifiable standard such as
race or religion or that it stems from her exercise of a constitutionally protected right. Instead, as
the Government observes [Doc. 170 pp. 4–5], Defendant “speculates” that it sought to add her as
a defendant to influence her codefendants or to delay the trial [Doc. 160 p. 1]. Thus, Defendant
falls well short of overcoming the presumption of regularity afforded prosecutorial decisions. See
United States v. Slaughter, No. 3:15-CR-0133, 2016 WL 8673056, at *7 n.34 (W.D. Ky. Oct. 14,
2016) (“summarily” rejecting the defendant’s selective enforcement claim when he did not “come
close” to making a showing of discriminatory purpose and effect), report and recommendation
adopted by 2017 WL 44950 (W.D. Ky. Jan. 4, 2017).
2. 	Vindictive Prosecution
Defendant also alleges the Government vindictively prosecuted her in order “to coerce
witnesses, coerce co-defendants and cause a delay in trial” [Doc. 197 p. 1]. She contends that the
Government had all the evidence, including her text messages, since the April 16, 2024 search of
RHP, yet it did not charge her in October 2024 when it charged her codefendants [Id. at 9]. Instead,
Defendant asserts the Government waited until May 2025, when it had received an advance copy
of Defendant Haney’s motion to suppress evidence seized in the search, to add her in the Second
Superseding Indictment [Id. at 10, 12–13]. She maintains that the Government has had her six-
page statement since the search of RHP but waited another twelve months to charge her, which is
seven months after it charged her codefendants [Id. at 12]. Defendant argues that more recent
evidence of the vindictiveness of the prosecution is the Government’s attempt to declare the case
complex and continue the trial in retaliation for Defendants’ filing pretrial motions, which she
contends “are likely to eviscerate [the Government’s] case” [Id. at 12–13].
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“‘[S]o long as the prosecutor has probable cause . . . , the decision whether or not to
prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his
discretion.’” Wayte v. United States, 470 U.S. 598, 607 (1985) (quoting Bordenkircher v. Hayes,
434 U.S. 357, 364 (1978)) (alteration in original). Due process prevents the exercise of the
prosecutor’s broad charging discretion to punish a defendant for exercising constitutional or
statutory rights. United States v. Howell, 17 F.4th 673, 687 (6th Cir. 2021) (citing United States v.
Goodwin, 457 U.S. 368, 372 (1982)). A defendant raising a claim of vindictive prosecution must
show “a realistic likelihood of vindictiveness” by demonstrating that “(1) the prosecutor has some
stake in deterring the defendant’s exercise of h[er] rights and (2) the prosecutor’s conduct was
somehow unreasonable.” Id. (citing United States v. LaDeau, 734 F.3d 561, 566 (6th Cir. 2013))
(citation modified). If defendant makes this showing, a “court may find . . . a ‘reasonable likelihood
of vindictiveness’ and may presume an improper vindictive motive.” Id. (quoting LaDeau,
734 F.3d at 566). Then, the burden shifts to the government to “rebut[] the presumption with
‘objective, on-the-record explanations’ such as ‘governmental discovery of previously unknown
evidence’ or ‘previous legal impossibility.’” Id. (quoting LaDeau, 734 F.3d at 566 (footnote
omitted)). The Court looks to the factual scenario before it to assess whether this standard is met.
LaDeau, 734 F.3d at 567 (“‘Each situation will necessarily turn on its own facts.’” (quoting United
States v. Andrews, 633 F.2d 449, 455 (6th Cir. 1980) (en banc))).
Here, a presumption of vindictiveness does not arise because Defendant Roper fails to
show either that the Government had a stake in deterring the exercise of constitutional rights or
that the prosecutor’s conduct in charging her seven months after her codefendants was
unreasonable.
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Turning to the first requirement, Defendant asserts that the Government sought charges
against her to deter her sister Tiffany Haney from pursuing a motion to suppress that would
devastate the Government’s case and to cause a trial continuance because it was not yet ready for
trial. Neither the timing of the motion, nor its potential impact bear this out.
While pretrial alteration of the charges can form the basis for a vindictive prosecution
claim, LaDeau, 734 F.3d at 567, the filing of pretrial motions, including suppression motions, “do
not generally provide a sufficient basis for vindictiveness,” United States v. Zakhari, 85 F.4th 367,
381 (6th Cir. 2023) (citation omitted). “Defense counsel routinely file pretrial motions to suppress
evidence,” and it is “unrealistic to assume that a prosecutor’s probable response to such motions
is to seek to penalize and to deter.” Goodwin, 457 U.S. at 381; see also LaDeau, 734 F.3d at 568
(characterizing the government’s burden of responding to pretrial motions, including suppression
motions, as “rather minimal” (citation omitted)).
Defendant Haney’s motion to suppress alleging false statements and material omissions in
the affidavits supporting the search warrant for RHP and the seizure warrants is a routine pretrial
motion, despite its allegations of fraud on the part of the affiant. C.f., LaDeau, 734 F.3d at 569
(finding prosecutorial vindictiveness when government added a charge significantly increasing the
potential penalties just before trial and after the defendant’s litigation of a successful suppression
motion, which forced the government essentially to restart its case). While Defendant Haney’s
pretrial motion6 created the burden of filing a response and engaging in pretrial litigation, the
undersigned finds that it is unlikely to “inflict[] a mortal blow” to the Government’s ability to
prove its case [See Doc. 204 (recommending that the District Judge deny the motions to suppress)].
6 	Defendant Roper’s suppression motion and other pretrial motions were filed after the
Second Superseding Indictment.
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LaDeau, 734 F.3d at 569. Moreover, the Government represents that the evidence seized in the
search of RHP is not the totality of its case. The undersigned also has no indication before it that
Defendant Haney’s motion required “‘duplicative expenditures of prosecutorial resources[.]’”
LaDeau, 734 F.3d at 570 (quoting Goodwin, 457 U.S. at 383). Instead, Defendant Roper entered
the case in time to join in Defendant Haney’s motion and to file her own pretrial motions.
Additionally, the Second Superseding Indictment does not add new charges for Defendant Haney.7
With respect to Defendant’s argument that the Government charged her in the Second
Superseding Indictment to force a trial continuance because it was not prepared for trial [Doc. 197
p. 12], the undersigned finds that at the time Defendant Roper was added to the case on May 21,
2025, the trial was set for August 26, 2025, more than three months away. The Government filed
a motion to continue the trial and declare the case complex nearly two months later, on July 13,
2025, after the Court set a motion hearing on Defendant Roper’s four pending pretrial motions two
weeks before trial, the earliest available date to all parties [See Doc. 181 p. 2; see also Doc. 180
p. 1]. Although Defendant Roper insisted upon her right to a speedy trial, she and all parties agreed
that the trial could not proceed on August 26, 2025, due to the Court’s need to rule on the pending
pretrial motions [Doc. 199 pp. 1–2, 11]. Thus, Defendant shows no prosecutorial stake in allegedly
deterring her constitutional rights.
7 	Defendant also suggests that the Government charged her to intimidate her sister and
codefendant Tiffany Haney and to induce Defendant Haney to enter a guilty plea [Doc. 197
pp. 11–12, 15]. Defendant asserts this motivation is evident from circumstance that the
Government requested a meeting with her despite the lengthy statement she provided at the time
of the search [Id. at 16]. Threats to bring harsher charges to induce a guilty plea “are not deemed
vindictive” because plea negotiations are mutually advantageous to prosecutors and defendants.
LaDeau, 734 F.3d at 569. Nevertheless, as stated above, the Second Superseding Indictment did
not bring new charges against Defendant Haney.
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Turning to the second requirement, charging Defendant in Count One seven months after
her codefendants was not “unreasonable.” Howell, 17 F.4th at 687 (requiring that a defendant show
“the prosecutor’s conduct was somehow unreasonable”). As Defendant points out [Doc. 197
p. 18], the Government sent her a target letter on October 30, 2024, which was five months before
Defendant Haney filed her motion to suppress [See Doc. 197-2, Target Letter]. The Government
filed a superseding indictment on March 5, 2025, and an AUSA assigned to the case contacted
Defendant on March 28, 2025, requesting her to contact him [Doc. 197-4 p. 2]. Upon her request,
Defendant Roper was appointed counsel on April 4, 2025 [Id. at 2–3]. She then decided to retain
counsel on April 17, 2025 [Doc. 197 p. 18]. She met with AUSAs assigned to the case and law
enforcement officers on May 14, 2025 [Id.]. Upon advice of counsel, she asserted her right to
remain silent [Id.]. Defendant submits that at the conclusion of the hearing, FBI Agent Celeste said
to an AUSA, “We just need to supersede the indictment” [Id.]. The Second Superseding Indictment
was filed one week later on May 21, 2025 [Id. at 19]. Defendant’s timeline shows that the
Government’s interest in prosecuting Defendant Roper predated any pretrial litigation. Moreover,
Defendant does not show that delaying indictment until after Defendant obtained counsel on
April 17, 2025, and met with prosecutors and agents on May 14, 2025, is unreasonable.
Defendant fails to demonstrate a reasonable likelihood of vindictiveness motivated the
Government to charge her in the Second Superseding Indictment. Thus, the undersigned does not
presume vindictiveness, nor does the burden shift to the Government to explain its conduct.
3. 	Unnecessary Delay
Citing to Federal Rule of Criminal Procedure 48(b), Defendant calls for dismissal of Count
One of the Second Superseding Indictment due to unnecessary delay [Doc. 160 p. 1 n.2]. She
argues the Government unnecessarily delayed because she was charged seven months after her
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codefendants and the Government had no new evidence [Doc. 197 p. 13]. Defendant references
Federal Rule of Criminal Procedure 48(b), which permits the Court to dismiss the indictment if it
finds “unnecessary delay” in “presenting a charge to the grand jury” or “bringing a defendant to
trial.” Rule 48(b) is “clearly is limited to post-arrest situations.” United States v. Marion,
404 U.S. 307, 219 (1971). Accordingly, “Rule 48(b) is an appropriate remedy only when there has
been 	unnecessary 	delay 	between 	arrest 	and 	indictment.” 	United 	States 	v. 	Richburg,
478 F. Supp. 535, 546 (M.D. Tenn. 1979) (citation omitted). Defendant Roper was indicted on
May 21, 2025 [Doc. 127], before her arrest the next day [Doc. 130, Minutes; Doc. 135, Arrest
Warrant Return). Thus, no delay implicating Rule 48(b) occurred here.
The Due Process clause of the Fifth Amendment also “plays a ‘limited role’ in protecting
against excessive preindictment delay.” United States v. Brown, 959 F.2d 63, 65 (6th Cir. 1992)
(citation omitted). And statutes of limitation are the main protection against stale criminal charges.
United States v. Lovasco, 431 U.S. 783, 789 (1977). To prevail on a motion to dismiss for
preindictment delay under the Fifth Amendment, a defendant must show (1) “substantial prejudice
to h[e]r right to a fair trial” and (2) “that the delay was an intentional device by the government to
gain a tactical advantage.” United States v. Greene, 737 F.2d 572, 574 (6th Cir. 1984) (quoting
United States v. Brown, 667 F.2d 566 (6th Cir. 1982)). Defendant Roper fails to demonstrate any
tactical advantage that the Government gained by charging her seven months after the initial
Indictment, nor does she assert any statutes of limitation violation. Accordingly, unnecessary or
preindictment delay is not a basis to dismiss Count One.
B. 	Prosecutorial Misconduct
Defendant also argues no “nexus” exists between her and the alleged offense nor between
her assets and any alleged crime and, thus, she could not be culpable of the alleged criminal
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conduct [Doc. 197 p. 3]. She maintains that if the Government had presented her at the same time
as Defendants Haney and Warren, the Grand Jury would not have indicted her [Id. at 3]. She asserts
that the Government’s conduct in seeking her indictment seven months after her codefendants is
“‘grossly shocking and outrageous as to violate the universal sense of justice’” and warrants the
dismissal of Count One [Id. at 48].
In the Sixth Circuit, “[d]ismissal of an indictment for prosecutorial misconduct may be
appropriate where ‘outrageous government conduct results in a violation of a defendant’s right to
due process[.]’” United States v. Harris, No. 1:23-cr-117, 2025 WL 1256806, at *10 (S.D. Ohio
May 1, 2025) (quoting United States v. Leedy, 345 F. Supp. 3d 941, 959 (S.D. Ohio 2018)); see
also United States v. Napier, 787 F.3d 333, 341 (6th Cir. 2015) (finding that prosecutor’s conduct
did not rise to the level of “outrageous” or “conscience shocking”). Such prosecutorial misconduct
“may rise to the level of a due process violation if it is ‘so outrageous that it violates fundamental
fairness or is shocking to the universal sense of justice.’” Id. (quoting Napier, 787 F.3d at 341
(citation omitted and modified)). Even when the prosecutor’s conduct is properly characterized as
shocking or outrageous, defendant also must have experienced some prejudice. Id. (citing United
States v. Adamo, 742 F.2d 927, 941 (6th Cir. 1984) (citation omitted)).
A Grand Jury indicted Defendant Roper for conspiracy to commit health care fraud
[See Doc. 127 ¶ 19]. At the time, it also considered and found that Defendants Haney and Warren
8 	Defendant provides no citation for this quotation, but the undersigned discerns that
Defendant may be citing the Ninth Circuit, which permits dismissal of an indictment for a due
process violation when the government’s conduct is “so grossly shocking and outrageous as to
violate the universal sense of justice.” United States v. Kearns, 5 F.3d 1251, 1253 (9th Cir. 1993)
(citing United States v. Green, 962 F.2d 938, 941 (9th Cir. 1992)); see also United States v. Salah,
No. 22-50319, 2024 WL 489300, at *1 (9th Cir. Feb. 8, 2024) (applying this standard and quoting
Kearns, 5 F.3d at 1253, and other Ninth Circuit case law).
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committed conspiracy to commit health care fraud and charged them jointly with Defendant Roper
in Count One [Id.]. Thus, the Grand Jury had the opportunity to consider Defendant Roper’s
“nexus” to the offenses alongside that of her codefendants and it found probable cause that all
three conspired to commit health care fraud. Defendant fails to show any impropriety in the timing
of her charges much less that the Government’s actions were shocking or outrageous.9
C. 	Miranda Warning
Defendant asks the Court to dismiss the Second Superseding Indictment because she was
subjected to custodial interrogation during the search of RHP without being advised of her
constitutional rights [Doc. 197 pp. 1–2]. She contends that she was questioned by agents during
the execution of the search warrant on April 16, 2024 [Id. at 2]. According to Defendant, she was
not free to leave during the search and felt intimidated [Id.]. Thus, she argues she was in custody
and the Miranda warnings were required but not given [Id.]. Defendant contends that the statement
she gave to agents on April 16, 2024, “was involuntary and so by implication she is here
referencing her Fourteenth Amendment right to due process[,]” which she alleges the agents
violated, warranting dismissal of the charge [Id.].
The Court agrees with the Government [Doc. 200 p. 1] that the Miranda issue is untimely
because Defendant raised it for the first time in her supplemental brief. Defendant Roper’s deadline
for filing pretrial motions was June 12, 2025 [Doc. 130, Minutes]. Defendant did not raise the
Miranda issue in any pretrial motions. At the August 12, 2025 evidentiary hearing, Defendant
testified that she was questioned by agents during the execution of the search warrant at RHP but
9 	Defendant Roper also makes several arguments relating to the validity of the search warrant
for the search of RHP [See Doc. 197 pp. 3–6]. These arguments are undeveloped, particularly in
relation to a motion to dismiss the charge. As the Government observes [Doc. 200 pp. 10–11],
these arguments were previously made regarding the Franks and particularity issues. As such,
these issues are the subject of another Report and Recommendation [Doc. 204].
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no one advised her of her of her “rights” [Doc. 195 pp. 31, 35]. Counsel for Defendant Roper
argued that agents wrongfully seized and searched Defendant’s cell phone, and in elaborating on
the impropriety of the search, he argued that the agents “never read them [(the RHP owners and
employees)] their rights” [Id. at 96]. Defendant did not argue that her statement to agents should
be suppressed, nor that her charge should be dismissed based upon a Miranda violation.
Motions 	seeking 	to 	dismiss 	the 	indictment 	must 	be 	made 	before 	trial. 	Fed. 	R.
Crim. P. 12(b)(3)(A)–(B). The Court has discretion to permit an untimely motion upon a showing
of “good cause.” Fed. R. Crim. P. 12(c)(3). “Good cause is a ‘flexible standard’ requiring an
explanation for both the delay and the potential prejudice.” United States v. Trujillo-Molina,
678 F. App’x 335, 337 (6th Cir. 2017) (citation omitted)). “At a minimum, a party must ‘articulate
some legitimate explanation for the failure to timely file.’” Id. (quoting United States v. Walden,
625 F.3d 961, 965 (6th Cir. 2010)). When determining the potential prejudice from a late-filed
motion, the Court considers “all interests in the particular case” including those of the Court and
the public. Id. at 339 (quoting Advisory Committee Notes to Fed. R. Crim. P. 12(c)(3)).
Defendant provides no explanation for raising this issue for the first time in her post-
hearing brief on her Motion to Dismiss. Nor does she address prejudice. The Government argues
that if this issue is permitted after the close of evidence, it is prejudiced because determination of
whether Defendant was in custody “is highly fact dependent,” and Defendant’s raising this issue
after the evidentiary hearing “deprived [it] of the opportunity to adequately develop the factual
record, either through its own witness or through effective cross-examination of [Defendant
Roper]” [Doc. 200 p. 2]. The undersigned agrees. “In drawing the line between a non-custodial
encounter between a citizen and the police (where Miranda does not apply) and a custodial
encounter (where it does), courts consider ‘all of the circumstances’ surrounding the encounter [.]”
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United States v. Panak, 552 F.3d 462, 465 (6th Cir. 2009) (citation omitted). “Several factors guide
the inquiry: the location of the interview; the length and manner of questioning; whether the
individual possessed unrestrained freedom of movement during the interview; and whether the
individual was told she need not answer the questions.” Id. (citation omitted). Because this issue
is fact dependent, the undersigned declines to determine whether Defendant was subject to
custodial interrogation when she gave a statement to agents during the execution of the search
warrant from an undeveloped record. Accord United States v. Otero, Nos. 24-3549 & 24-3550,
2025 WL 2662274, at *3–4 (6th Cir. Sept. 17, 2025) (declining to review defendant’s custodial
interrogation issue, raised for the first time on appeal, for plain error because resolving this issue
on an incomplete record risks creating a “misleading picture” of the facts and circumstances).
Defendant therefore fails to show good cause for not raising the Miranda issue by her
June 12, 2025 motion deadline. But even if a Miranda violation occurred, Defendant does not
show that dismissal of the charge against her is an available remedy. Instead, as the Government
observes, the typical remedy for a Miranda violation is suppression of the statement [Doc. 200
p. 1]. See United States v. Burke, 781 F.2d 1234, 1245 (7th Cir. 1985) (“Statements taken in
violation of Miranda may be suppressed; the absence of warnings does not taint the indictment.”);
see also United States v. Norris, No. 1:05-CR-479, 2007 WL 9655844, at *18 (N.D. Ga. June 27,
2007) (holding the “appropriate remedy” for a Miranda violation is “exclusion of evidence at trial,
not dismissal of the indictment”), report and recommendation adopted by 2007 WL 9657881
(N.D. Ga. Sept. 20, 2007).
D. 	Destruction of Exculpatory Evidence
At the August 12, 2025 evidentiary hearing, Defendant Roper testified that twenty agents
entered RHP to execute the search warrant, and shortly after they entered, “some agents went into
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our office, and they turned off our security screens” [Doc. 195 pp. 29–30].10 Defendant contends
she was denied exculpatory evidence when agents disabled the surveillance cameras at RHP during
the execution of the search warrant [Doc. 197 p. 1]. She asserts that she is prejudiced by this
“preemptive destruction of evidence” due to the absence of a “video to document the agent’s
actions or support the facts related to how the search was conducted” [Id. at 7]. Defendant
maintains that pursuant to its supervisory powers, the Court has discretion to dismiss an action if
a defendant suffers substantial prejudice and “‘no lesser remedial action is available’” [Id. (quoting
United States v. Chapman, 524 F.3d 1073, 1087 (9th Cir. 2008))]. Defendant argues that dismissal
with prejudice is warranted here because the agents’ actions in deactivating the security cameras
was “flagrant misconduct” [id. at 15], video of the search of RHP cannot be recreated [id. at 7],
and the FBI acted with improper motives [id.].
As the Government asserts [Doc. 200 p. 4], this argument is untimely because Defendant
failed to raise it by her June 12, 2025 deadline for filing pretrial motions or to establish good cause
for raising it two and one-half months later. Defendant Roper did not raise this argument in her
Motion to Dismiss [Doc. 160]. Instead, she first mentioned that the agents turned off the
surveillance cameras during her testimony at the August 12, 2025 hearing. Defendant testified that
she observed some agents turn off the security cameras after their arrival to execute a search
warrant at RHP on April 16, 2024. On June 11, 2025, Defendant provided an affidavit
[Doc. 158-1] stating the actions of the agents executing the search warrant in support of her
Supplemental Brief on Standing. In her affidavit, Defendant does not mention that the agents
turned off the security cameras [See id.]. Nor does she raise this fact in describing the FBI’s search
10 	Defendant Roper subsequently responded to counsel’s question about when the agents
turned 	off 	the 	“security 	cameras,” 	stating 	it 	was 	“initially” 	after 	they 	entered 	RHP
[Doc. 195 p. 30].
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of RHP in her Motion and Memorandum to Suppress evidence seized from her cell phone
[See Doc. 165 p. 11]. Defendant provides no explanation for her failure to raise this issue before
the motion deadline expired. Like with the Miranda issue, the Government is prejudiced by the
inability to develop the factual record regarding RHP’s security cameras. In the absence of good
cause, the undersigned declines to address this untimely issue.
But even if this issue were timely raised, Defendant’s argument also fails on the merits.
Pursuant to Brady v. Maryland, 373 U.S. 83 (1963), the government has “a general obligation . . .
to disclose evidence that is favorable to the accused and material to guilt or punishment[.]” United
States v. Presser, 844 F.2d 1275, 1281 (6th Cir. 1988). “To succeed on a Brady claim, a [defendant]
must establish: (1) the existence of favorable evidence, either exculpatory or impeaching; (2) that
the evidence was suppressed; and (3) that the suppression resulted in prejudice.” Hill v. Mitchell,
842 F.3d 910, 926 (6th Cir. 2016) (citing Strickler v. Greene, 527 U.S. 263, 281–82 (1999)).
Defendant Roper presents no information that if created, the video recordings would be
exculpatory, i.e., material to her guilt or punishment, or impeaching.
Moreover, when law enforcement fails to gather potentially exculpatory evidence, rather
than a prosecutor failing to disclose existing exculpatory evidence, the defendant must also show
that the officers acted in bad faith. United States v. Akins, 995 F. Supp. 797, 813 (M.D. Tenn.
1998) (citing Arizona v. Youngblood, 499 U.S. 51, 57–58 (1988)). “This requirement frees courts
from the difficult task of determining the possible exculpatory value of evidence that no longer
exists[ and] . . . limits the exclusion remedy to those compelling cases where the police themselves
believed that the evidence was potentially exculpatory, and for this very reason failed to preserve
it.” Id. (citing Youngblood, 488 U.S. at 58). Defendant presents no evidence or proffer that the FBI
agents acted in bad faith in turning off the RHP security cameras but, instead, contends only that
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the timing—that the agents turned off the cameras “first thing” after entering RHP—“suggests
improper motives” [Doc. 197 p. 7]. Nor does Defendant show that she was prejudiced by the
absence 	of 	video 	footage 	of 	the 	search. 	See 	United 	States 	v. 	Watson, 	No. 	24-5729,
2025 WL 1683659, at *7 (6th Cir. June 16, 2025) (rejecting Brady argument when officers
executing an anticipatory search warrant taped over doorbell camera because defendant failed to
show the evidence was material or exculpatory; also rejecting due process claim); United States v.
Butt, 2019 WL 479117, at *11 (S.D.N.Y. Feb. 7, 2019) (finding no due process violation when
FBI agents executing a search warrant turned off the defendant’s home security cameras as a matter
of protocol because “absent any evidence that the missing footage was detrimental to [the
defendant], the [c]ourt need not suppress the evidence that was found during the search, nor
dismiss the indictment”).
III. 	CONCLUSION
For the reasons discussed herein, the undersigned finds that:
1. 	Defendant fails to show that her prosecution is selective, vindictive,
or unnecessarily delayed;
2. 	Defendant fails to demonstrate shocking or outrageous conduct by
the prosecution in seeking her charge seven months after her
codefendants;
3. 	Defendant’s 	Miranda 	challenge 	is 	untimely, 	and 	a 	Miranda
violation, even assuming one occurred, would not warrant dismissal;
and
4. 	Defendant’s 	claim 	that 	agents 	executing 	the 	search 	warrant
destroyed exculpatory evidence is also untimely and such claim is
meritless.
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The undersigned therefore RECOMMENDS11 that the District Judge DENY Defendant Roper’s
Motion to Dismiss Indictment [Doc. 160].
Respectfully submitted:
__________________________
Jill. E. McCook
United States Magistrate Judge
11 	Any objections to this report and recommendation must be served and filed within fourteen
(14) days after service of a copy of this recommended disposition on the objecting party.
Fed. R. Crim. P. 59(b)(2) (as amended). Failure to file objections within the time specified waives
the right to review by the District Court. Fed. R. Crim. P. 59(b)(2); see United States v. Branch,
537 F.3d 582, 587 (6th. Cir. 2008); see also Thomas v. Arn, 474 U.S. 140, 155 (1985) (providing
that failure to file objections in compliance with the required time period waives the right to appeal
the District Court’s order). The District Court need not provide de novo review where objections
to this report and recommendation are frivolous, conclusive, or general. Mira v. Marshall,
806 F.2d 636, 637 (6th Cir. 1986). Only specific objections are reserved for appellate review. Smith
v. Detroit Fed. of Tchrs, 829 F.2d 1370, 1373 (6th Cir. 1987).
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