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United States v. Manafort

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

July 10, 2018

UNITED STATES OF AMERICA,
v.
PAUL J. MANAFORT, Defendant.

          MEMORANDUM OPINION

          T.S. Ellis, III United States District Judge.

         At issue in this multi-count bank and tax fraud prosecution is defendant's motion to suppress evidence recovered from a search of his residence in Alexandria, Virginia. Specifically, defendant contends that the warrant authorizing the search failed to satisfy the Fourth Amendment's requirements (i) because the warrant did not clearly describe the evidence to be seized and (ii) because the scope of the warrant was not limited by the probable cause on which the warrant was based. Defendant also argues that the execution of the search violated his Fourth Amendment rights because the executing agents exceeded the scope of the warrant and unlawfully retained defendant's personal items.

         The government opposes defendant's motion, contending that the warrant was sufficiently particularized and limited by the probable cause established in the affidavit. The government further argues that even assuming the warrant was overbroad, the executing agents' good-faith reliance on the warrant renders suppression inappropriate.

         The issues raised in defendant's motion have been fully briefed and argued and are now ripe for disposition.

         I.[1]

         On July 25, 2017, Federal Bureau of Investigation (“FBI”) Special Agent Pfeiffer submitted an application for a warrant to search defendant's condominium in Alexandria, Virginia. The application was based on a 41-page affidavit, which began by describing Special Agent Pfeiffer's basis for believing that defendant committed several crimes, including failure to file a report of foreign bank and financial accounts, in violation of 31 U.S.C. §§ 5314, 5322(a), filing a false tax return, in violation of 26 U.S.C. § 7206(1), bank fraud in connection with an extension of credit, in violation of 18 U.S.C. § 1014, mail fraud and wire fraud, in violation of 18 U.S.C. §§ 1341, 1343, and 1349, and money laundering, in violation of 18 U.S.C. §§ 1956 and 1957 (collectively referred to hereafter as the “Subject Offenses”). The affidavit then described Special Agent Pfeiffer's belief that pertinent evidence of these crimes, including financial records, business records, and other materials, would be located at defendant's condominium. Aff. ¶¶ 60-80. Specifically, the affidavit described how Special Agent Pfeiffer had interviewed Alex Trusko (“Trusko”), a current employee of one of defendant's companies, who revealed that he had recently visited defendant's residence, and while there, observed (i) that defendant had a home office, (ii) that the home office housed a MacBook desktop computer, and (iii) that defendant stored some records related to his businesses in that home office. See Id. ¶¶ 65-71. Trusko also described defendant's “widespread use of electronic media in the course of his business activity” id. ¶ 76, and explained that in defendant's previous residence, defendant had retained a drawer of old cellular phones and other electronic equipment. Id. ¶¶ 71, 76.

         Based on this interview, Special Agent Pfeiffer requested authorization to search defendant's residence pursuant to Rule 41, Fed. R. Crim. P. Specifically, the affiant, Special Agent Pfeiffer, requested authorization to seize electronic devices that may have been used to commit the Subject Offenses but also any “storage media that reasonably appear to contain some or all of the evidence described in the warrant.” Aff. ¶ 80.

         That same day, on July 25, 2017, a magistrate judge issued a warrant authorizing the search of defendant's residence, including “any locked drawers, containers, cabinets, safes, computers, electronic devices, and storage media (such as hard disks or other media that can store data) found therein.” Warrant Attach. A. With respect to seizure, Attachment B to the warrant authorized executing agents to seize “[r]ecords relating to” the Subject Offenses, “occurring on or after January 1, 2006, including but not limited to:

a. Any and all financial records for Paul Manafort, Jr., [Manafort's wife], Richard Gates, or companies associated with [those individuals], including but not limited to records relating to any foreign financial accounts and records relating to payments by or on behalf of any foreign government, foreign officials, foreign entities, foreign persons, or foreign principals;
b. Any and all federal and state tax documentation, including but not limited to personal and business tax returns and all associated schedules for Paul Manafort, Jr., Richard Gates, or companies associated with Manafort or Gates;
c. Letters, correspondence, emails, or other forms of communications with any foreign financial institution, or any individual acting as the signatory or controlling any foreign bank account;
d. Records relating to efforts by Manafort, Gates, or their affiliated entities to conduct activities on behalf of, for the benefit of, or at the direction of any foreign government, foreign officials, foreign entities, foreign persons, or foreign principals, including but not limited to the Party of Regions and Viktor Yanukovych;
. . .
h. Communications, records, documents, and other files involving any of the attendees of the June 9, 2016 meeting at Trump tower, as well as Aras and Amin Agalorov;
i. Evidence indicating Manafort's state of mind as it relates to the crimes under investigation[.]

Warrant Attach. B ¶ 1.

         Attachment B to the warrant further authorized executing agents to seize (i) “[c]omputers or storage media used as a means to commit the Subject Offenses, ” id. ¶ 2, and (ii) specific categories of information on “any computer or storage medium that contains or in which is stored records or information that is otherwise called for by this warrant[, ]” id. ¶ 3.

         On July 26, 2017, the day after the warrant issued, the government executed the warrant and searched defendant's residence. As a result of the search, the executing agents seized financial and other records as well as several electronic devices and storage media, including: memory cards from several cameras, iPods, iPads, a Macbook Air computer, and an external hard drives. See Warrant Return Attach. A. The government also imaged, or made digital copies of, several devices during the search, thereby allowing defendant to retain the original devices.[2]Also during the search, the government flagged and separated materials as being potentially subject to attorney-client privilege. See Id. Attach. C. Since the search, the government has conducted ongoing privilege and relevance reviews, making efforts to separate and to remove irrelevant materials and offering defendant and counsel the opportunity to gain insight into the review process and to examine any identified irrelevant material. See Letter from Robert S. Mueller, III, Special Counsel, to Kevin M. Downing, Law Offices of Kevin Downing (Dec. 1, 2017); Letter from Robert S. Mueller, III, Special Counsel, to Kevin M. Downing, Law Offices of Kevin Downing 3, 11 (Nov. 17, 2017).

         On April 30, 2018, defendant filed the motion to suppress the evidence recovered from the July 25, 2017 search of defendant's residence on grounds that (i) the warrant did not clearly describe the evidence to be seized, (ii) the scope of the warrant was not limited by the probable cause on which the warrant was based, and (iii) the executing agents exceeded the scope of the warrant and unlawfully retained defendant's personal items. The government opposes defendant's motion, contending that the warrant was adequately particularized and limited by the probable cause established in the affidavit. The ...


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