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In re Search of 2122 21St Road North Arlington

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

January 23, 2018

IN THE MATTER OF THE SEARCH OF 2122 2151 Road North Arlington, Virginia. And IN THE MATTER OF THE SEARCH OF University of Management and Technology,

          ORDER

          Liam O'Grady, Judge

         This matter comes before the Court on Appellant Yanping Chen Frame's objection to Magistrate Judge Anderson's denial of Appellant's Motion to Show Cause. See Dkt. 1. On September 26, 2017, Judge Anderson denied Appellant's motion for a show cause hearing seeking to particularize the Government's alleged violation of Federal Rule of Criminal Procedure 6(e), the Government's authority to search and seize pursuant to a warrant of this Court, and the Privacy Act. Id. On December 8, 2017. this Court heard arguments on Appellant's objection, and took the matter under advisement. See Dkt. 11. Having considered the arguments and the pleadings, and for good cause shown, the Court hereby APPROVES AND ADOPTS Magistrate Judge Anderson's decision in full.

          I. Background

         Appellant, Dr. Yanping Chen Frame, is a naturalized United States citizen who emigrated from the People's Republic of China f/'PRC") in 1987. On December 3, 2012, the Government sought and received from Magistrate Judge Anderson warrants to search Appellant's home and the offices of the University of Management and Technology (LLUMT"), a for-profit institution owned by Appellant. The applications relied on an affidavit by Special Agent Timothy Pappa of the Federal Bureau of Investigation which alleged that Appellant concealed her past PRC military involvement on her immigration applications. When the searches were executed- several news organizations were present. Fox News subsequently reported on the searches. Appellant claims that the reports "drew heavily, if not exclusively, from the fde of the investigation of Appellant/' Dkt. 1 at 4. Specifically, the television broadcasts included images which Appellant claims were -copied from family photographs seized in the search of Appellant's home." Id. Appellant has sworn that the seized photographs in question were the sole copies. Appellant also asserts that Fox News published portions of Appellant's immigration records, an FBI 302 of an interview with Appellant's daughter, and a document revealing the investigation as a counterespionage matter. Id. Fox News also published comments from Stephen Rhoads, a former employee of UMT.

         On March 10, 2017, Appellant filed a motion to show cause why sanctions should not issue, arguing thai the Government had violated grand jury secrecy by intentionally leaking documents obtained during the searches, and that the Government had violated the Court's sealing order. See Dkt. 1-2 at 2. In May of 2017, Appellant filed a second motion to show cause, this time based on an alleged violation of the Privacy Act. Judge Anderson denied the motions, and Appellant subsequently objected on the grounds that Magistrate Judge Anderson incorrectly found (a) that Appellant had failed to make a prima facie showing that the Government had violated Federal Rule of Criminal Procedure 6(e); (b) that Magistrate Judge Anderson had no authority to sanction an abuse by the Government of the authority conferred by the Court to search for and seize evidence: and (c) that Magistrate Judge Anderson had no jurisdiction to pursue a violation of the Privacy Act since an order to show cause is not an articulated remedy under the Act. The Court affirms Magistrate Judge Anderson on all three counts, for the reasons described below.

         II. Analysis

         a. Federal Rule of Criminal Procedure 6(e)

         Federal Rule of Criminal Procedure 6(e) addresses the recording and disclosing of grand jury proceedings. It applies only to "matters occurring before the grand jury, ” and does not apply to documents and other materials obtained through other sources during the course of an investigation conducted by a law enforcement agency. See United States v. Rosen, 471 F.Supp.2d 651, 655 (E.D. Va. 2007) (Ellis, J.). As Judge Ellis explained in Rosen,

It is important to bear in mind that law enforcement investigations typically precede, or occur simultaneously with but independently of, grand jury investigations. Leaks of information from law enforcement investigations that relate to matters under grand jury investigation do not concern "matters before the grand jury." unless, of course, they disclose secret details about proceedings inside the grand jury room.

Id. Importantly, statements by the government about a law enforcement investigation are not the same as statements about a grand jury investigation. Id. (noting that the latter is a Rule 6(e) violation but the former is not). "Courts have therefore sensibly determined that a hearing on a claimed Rule 6(e) violation will not be held absent a showing of a prima facie Rule 6(e) violation." Id. at 656.

         The Court in Rosen established the floor of a prima facte case for a Rule 6(e) violation. which requires Appellant to show, at minimum, "the detail and specificity necessary to reflect a disclosure of-matters occurring before a grand jury."' Id. The Court noted that the media reports at issue in Rosen did not identify grand jury witnesses, did not disclose questions that were asked or would be asked of witnesses in the grand jury, and did not describe or summarize a grand jury investigation, and therefore held that the movant had failed to make a prima facie case. Id. Similarly, in this case, Appellant has not alleged disclosures with sufficient detail and specificity to reflect "matters occurring before a grand jury."

         Appellant claims that Fox News disclosed the identity of a grand jury witness because Mr. Rhoads described himself as "working with the FBI, " and stated that he had been called to testify before a grand jury. See Dkt. 1 at 5. Appellant argues that this constitutes a disclosure of a grand jury witness, and even asserts that because Mr. Rhoads has described himself as "working with" the FBI, he is a "de facto agent of same." Id. This is not the law. An individual's mere statement that he is "working with" the government is insufficient to establish an agency relationship. See 3 Am. Jur. 2d Agency § 14 ("An agency relationship results from the manifestation of consent by the principal that the agent will act on his or her behalf and subject to his or her control, with a correlative manifestation of consent by the agent to act on his or her behalf and subject to his or her control."); see also Thomas v. Cox, 708 F.2d 132, l36(4thCir. 1983) (explaining that there is no bright-line test to determine whether a citizen is acting as an agent of the state, and declining to find an agency relationship where a self-initiated informant contacted the government with information about the defendant). Nothing in the record in this case suggests that whatever may have been discussed with or disclosed to the media by Mr. Rhoads was done pursuant to FBI instructions.

         Not only has Appellant failed to establish that Mr. Rhoads was a "de facto agent" of the FBI, Appellant has made no showing that Mr. Rhoads was the Fox News reports' sole source; one article mentioned eighteen other sources for the story. See Dkt. 8 at 3-5. Therefore, even assuming that Mr. Rhoads was a grand jury witness, there is no evidence that the Government (or anyone else bound by Fed. R. Crim. P. 6(e)) disclosed that fact. This, in conjunction with the lack of detail and specificity regarding the contents of any witness questioning or testimony, lead the Court to conclude that Appellant has failed to make the prima facie showing for a hearing on an alleged Rule 6(e) violation.

         b. Federal Rule of ...


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