NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 13-4761

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UNITED STATES OF AMERICA

v.

MICHAEL F. DURANTE,

 Appellant 

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On Appeal from the United States District Court

for the District of New Jersey

(No. 2-11-cr-00277-1)

District Judge: Hon. Stanley R. Chesler

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 21, 2015

Before: FISHER, CHAGARES, and COWEN, Circuit Judges.

(Filed: June 3, 2015)

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OPINION

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CHAGARES, Circuit Judge.

Defendant Michael F. Durante appeals his conviction on a number of grounds. 

For the reasons that follow, we will affirm. 

 

 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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I.

We write exclusively for the parties and therefore set forth only those facts that are 

necessary to our disposition. Durante was a physician with a practice in Nutley, New 

Jersey. In December 2011, Durante was charged by Superseding Indictment with 

conspiracy to distribute oxycodone and distribution of oxycodone. Durante moved to 

suppress evidence and to obtain certain information prior to trial. The District Court held 

an evidentiary hearing limited to the search of a safe found in Durante’s basement and 

Durante’s post-arrest statements. The District Court ultimately denied all of Durante’s 

motions. In May 2013, Durante was convicted by a jury on the count of conspiracy and 

on fifteen counts of distribution. 

Durante timely appealed. 

II.1

Durante first alleges that the District Court erred in failing to dismiss the 

Superseding Indictment or declare a mistrial when some of the drug prescriptions that 

were conditionally admitted were struck after the Government failed to establish their 

relevance. The District Court admitted 1288 drug prescriptions during the course of the 

trial and told the jury that they would only be able to consider the prescriptions as 

evidence if the Government offered additional evidence to establish the prescriptions’

relevance to the alleged scheme. The Court later struck 477 of these prescriptions 

admitted during trial and 23 of these 477 were actually shown to the jury. We review a 

 

1 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction 

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We note the applicable standards of 

review with regard to each claim below.
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District Court’s evidentiary rulings for an abuse of discretion. United States v. Smith, 

725 F.3d 340, 344–45 (3d Cir. 2013) (citing United States v. Green, 617 F.3d 233, 239 

(3d Cir. 2010)). After striking 477 of the prescriptions, the District Court denied 

Durante’s motion for a mistrial and instead determined that a curative instruction would 

be sufficient to cure any harm, as most of the prescriptions displayed to the jury were not 

struck, and the inadmissible prescriptions the jury had seen were viewed as a part of a 

large stack, making it unlikely they would have “focused on any particular prescription.” 

Supplemental Appendix (“Supp. App.”) 521. Given this context, the District Court did 

not abuse its discretion in addressing the struck prescriptions with a curative instruction 

instead of dismissing the Superseding Indictment or declaring a mistrial. 

Durante next asserts that the District Court erred in both denying his motions to 

suppress the fruits of the searches of his home and office and in denying his request for a 

hearing on those motions. We review the denial of a motion to suppress for clear error as 

to the facts that the District Court found and exercise plenary review over the application 

of law to those facts. United States v. Davis, 726 F.3d 434, 439 (3d Cir. 2013). We 

review the decision on whether to grant an evidentiary hearing for abuse of discretion. 

United States v. Hines, 628 F.3d 101, 104 (3d Cir. 2010).

The Government justifies the search of Durante’s home based on the consent to 

search given by Durante’s wife. Durante’s wife gave oral consent and signed a three-line 

consent-to-search form. Durante asserts that his wife did not voluntarily consent to the 

search, but he provides no basis for this assertion beyond her general statement that she 

did not understand the form. It was not clear error for the District Court to determine that 
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the consent given by Durante’s wife was voluntary and thus justified the search of the 

home. Further, because Durante offered no clear basis for his assertion that his wife’s 

consent was not voluntary, the District Court did not abuse its discretion in denying 

Durante’s request for a hearing on this issue. 

Next, Durante challenged the search of the safe in the basement of the home. He 

requested and was given a hearing on this issue. Durante consented to the search of the 

safe, but argues that this consent was not given voluntarily because one of the agents 

implied it could harm Durante in the future if he refused to consent. It was not clear error 

for the District Court to determine Durante’s consent was voluntary under the totality of 

the circumstances. Thus, the District Court did not err in denying Durante’s motion to 

suppress the fruits of the search of the safe.

Durante challenges the District Court’s denial of his motion to suppress the fruits 

of the search of his office on the grounds that the agents did not have a complete copy of 

the search warrant during the search and did not leave behind complete copies of the 

warrant. He also challenges the District Court’s denial of his request for a hearing on 

these issues. It was not an abuse of discretion for the District Court to deny Durante’s 

request for a hearing on this issue given the agent’s uncontradicted affidavit that he 

possessed a complete search warrant during the search. It was also not clear error for the 

District Court to determine that the agents did indeed possess a complete copy of the 

search warrant. Additionally, the District Court did not err in determining that the failure 

to leave a complete copy of the search warrant that included all applicable attachments 

was a ministerial violation of Federal Rule of Criminal Procedure 41, not a constitutional 
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violation. Thus, the District Court did not err in declining to suppress the fruits of the 

office search on that basis.

Durante further claims that the District Court erred in limiting the inquiry at the 

evidentiary hearing to the timing of when he received warnings under Miranda v. 

Arizona, 384 U.S. 436 (1966), because he should have also been permitted to explore 

whether the search of his home, the “lapse of time” between the warnings and his postsearch confession, and his reference to his attorney “collectively” rendered his confession 

involuntary. Durante Br. 36–37. However, there is no indication that Durante was 

foreclosed from addressing these issues at the hearing, and he failed to do so. “‘[A] 

suppression argument raised for the first time on appeal is waived . . . absent good 

cause.’” See United States v. Joseph, 730 F.3d 336, 338 (3d Cir. 2013) (quoting United 

States v. Rose, 538 F.3d 175, 182 (3d Cir. 2008)). Durante failed to assert this argument 

below and has not demonstrated good cause for that failure. He has waived the claim.

Durante also challenges the District Court’s refusal to dismiss the Superseding 

Indictment for failure to allege unlawful drug distribution by a doctor. This was not error 

under our decision in United States v. Polan, in which we rejected a physician’s claim 

that his indictment for conspiracy to distribute and distribution of oxycodone was flawed 

because it failed to specify that the physician lacked a legitimate medical reason for 

writing the prescriptions at issue. 970 F.2d 1280, 1282 (3d Cir. 1992). While an 

indictment must charge every essential element of an offense, it need not negate any 

exceptions to that offense. Id. (citing McKelvey v. United States, 260 U.S. 353, 357
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(1922)). Similarly, the Superseding Indictment was not flawed for its failure to specify 

that Durante’s alleged drug distribution was illegal.

Finally, Durante asserts that the District Court erred by refusing to either dismiss 

the charges or grant a mistrial based on the cumulative effect of the Government’s 

“pervasive misconduct.” We review the District Court’s rulings on claims of 

prosecutorial misconduct for abuse of discretion where a defendant asserted 

contemporaneous objections and for plain error when the defendant did not do so. United 

States v. Brennan, 326 F.3d 176, 182 (3d Cir. 2003). The alleged misconduct included 

improper arguments to the jury, late disclosures of evidence in violation of Brady v. 

Maryland, 373 U.S. 83 (1963), and spoliated or altered evidence.

While the District Court determined that the Government had committed a number 

of errors before and during Durante’s trial, it concluded that these errors were insufficient 

to warrant the dismissal of the Superseding Indictment or granting a mistrial. For 

example, while the District Court agreed that it was error for the Government to refer to 

oxycodone as “synthetic heroin,” the District Court opted to address this error by issuing 

a limiting instruction. The District Court found that, while some evidence was destroyed 

in the case, the Government had not intentionally destroyed this evidence. Further, the 

District Court concluded that all Brady material was produced before or during trial, such 

that Durante had sufficient time to make use of it. As a result, the District Court found 

that a mistrial was not warranted. Durante alleges that the cumulative effect of these 

errors warrants a dismissal or mistrial, but the District Court did not abuse its discretion 

or, when applicable, commit plain error in finding otherwise. 
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IV.

For the foregoing reasons, we will affirm the judgment of the District Court.