Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Search of 2122 21st Road North Arlington

United States District Court, E.D. Virginia, Alexandria Division

September 28, 2017

THE MATTER OF THE SEARCH OF 2122 21st Road North Arlington, Virginia; and IN THE MATTER OF THE SEARCH OF University of Management and Technology

          MEMORANDUM OPINION AND ORDER

          John F. Anderson Alexandria, Virginia United States Magistrate Judge

         This matter is before the court on the renewed request by Yanping Chen Frame ("Dr. Frame" or "movant") for an order to show cause why sanctions should not issue. Upon consideration of Dr. Frame's addendum and second addendum to the motion to show cause why sanctions should not issue (Docket nos. 19. 21), the response in opposition (Docket no. 22), the reply (Docket no. 23), the third addendum (Docket no. 24), the arguments presented by counsel during the hearing held on Tuesday, September 5. 2017 (Docket no. 25), and for the reasons discussed below, the court will deny movant's additional request for an order to show cause why sanctions should not issue.

         Factual and Procedural Background

         Movant's motion stems from two search warrants issued by the court on December 3. 2012. (Docket no. 4). On the date of issue, the court sealed the search warrants and applications until March 4. 2013. (Docket no. 3). At the government's request, on January 14, 2014 the court ordered the search warrants and applications partially unsealed "to allow counsel for Yanping Chen to review a redacted version of the affidavit in the U.S. Attorney's Office for the limited purpose of prc-indictment pica discussions/' (Docket nos. 6. 7). On March 10, 2017, movant filed a motion for an order to show cause why sanctions should not issue, arguing that the government had violated grand jury secrecy (Fed. R. Crim. P. 6(e)(2)(B)) by intentionally leaking documents obtained during the government's searches to Fox News and had violated the court's sealing order. (Docket no. 9).[1] Movant noted that a Fox News report published in February 2017 included "two photographs which are the personal property of Movant seized pursuant to one of the search warrants authorized by this Court." (Id. at 2). On March 24, 2017, the government filed a response to the motion to show cause arguing that there was no violation of a court order since the sealing order expired by its own express terms on March 4, 2013, and there was no violation of Fed. R. Crim. P. 6(e) because nothing in the Fox News report disclosed details concerning a grand jury investigation. (Docket no. 11). On April 7, 2017, the movant filed a reply detailing the harm movant and her University sustained as a result of the Fox News report. (Docket no. 13). On April 25, 2017, the court set a hearing for May 8, 2017. On May 5, 2017, movant filed an addendum to her original motion to show cause, discussing a second Fox News report and raising for the first time an allegation that the disclosure of movant's information was a violation of the Privacy Act (5 U.S.C. § 552a). (Docket no. 19). Following the hearing on May 8, 2017, this court denied the first motion for an order to show cause, finding no violation of the court's order sealing documents and that movant had failed to establish a prima facie violation of Fed. R. Crim. P. 6(e). (Docket no. 18). Given that movant's argument concerning the Privacy Act was not presented until May 5, 2017, and the government did not have an opportunity to respond to that claim, the court expressly stated that the ruling did not address the alleged Privacy Act violation. (Id.).

         On May 22, 2017, movant filed a second addendum to the motion to show cause, again alleging in more detail a Privacy Act violation. (Docket no. 21). This second addendum also included an affidavit from Dr. Frame stating that the images published by Fox News were seized pursuant to the search warrants issued by the court and that she is not aware of any other source from which Fox News could have obtained those images other than from the materials obtained by the government through the search warrants. (Docket no. 21-1). The government filed a response in opposition on June 5, 2017 (Docket no. 22) arguing that this court lacks jurisdiction to consider the movant's request and, even if the court did have jurisdiction, movant failed to show that the evidence obtained constituted a "system of records" as required by the Privacy Act and that Stephen Rhoads was an agent of the FBI. (Docket no. 22). Movant filed a reply on June 15, 2017 (Docket no. 23) and a third addendum on July 5, 2017 (Docket no. 24) alleging that Fox News is continuing to report on Dr. Frame based on fruits of the government's investigation. The court held a hearing on September 5, 2017 and took the matter under advisement. (Docket no. 25).

         Legal Standard

         The Privacy Act

         The Privacy Act was enacted in 1974 to "regulate the collection, maintenance, use, and dissemination of information" by federal agencies "in order to protect the privacy of individuals identified in information systems maintained" by those agencies. See Doe v. Chao, 540 U.S. 614, 618 (2004) (citing Privacy Act of 1974, Pub. L. No. 93-579 § 2(a)(5), 88 Stat. 1896 (1974)). The Act specifies several requirements for agencies' recordkeeping, such as having "adequate safeguards" to "prevent misuse of [identifiable personal information ...." Privacy Act of 1974, Pub. L. No. 93-579 § 2(b)(4), 88 Stat. 1896 (1974). The Act also provides for civil relief for individuals harmed by the government's failure to comply with the Act's requirements in the following circumstances:

         Whenever any agency

(A) makes a determination under subsection (d)(3) of this section not to amend an individual's record in accordance with his request, or fails to make such review in conformity with that subsection;
(B) refuses to comply with an individual request under subsection (d)(1) of this section;
(C) fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual; or
(D) fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.