United States District Court, E.D. Virginia, Alexandria Division
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,
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
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.
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.
Federal Rule of Criminal Procedure 6(e)
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.
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."
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
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
Federal Rule of ...