United States v. Manafort

UNITED sTATEs DIsTRlCT CoURT
FoR THE DISTRICT oF CoLUMBIA JUL 1 8 2018

C|erk, U.S. District & Bankruptcy
Courts for the District of Co|umbla

UNlTED STATES OF Al\/[ERICA,
**>i< pUBLlC >i=>i<*

v.
Crim. Action No. 17-0201-01 (ABJ)

PAUL J. MANAFORT, JR.,

Defendant.

MEMORANDUM OPINION AND ORDER

Defendant Paul J. l\/lanaf`ort, Jr. has moved to suppress the evidence seized pursuant to a
search warrant executed at his Alexandria, Virginia residence on July 26, 2017. Def.’s I\/Iot. to
Suppress [Dkt. # 264] (“Def.’s Mot.”) at 1-2. He argues that the warrant was unconstitutionally
overbroad. Id. at 1_4. He also complains that the affidavit submitted in support of the warrant
application did not set forth probable cause to support the seizure of electronic devices; that the
agents who executed the search exceeded its permissible scope; and that the government has
improperly retained some of the items it seized. Ia’. at 1~2, 4-10.l The government opposed the
motion, Gov’t Mem. in Opp. to Def.’s l\/lot. (Public) [Dkt. # 284], (Sealed) [Dl1< >l<

i, Evidence indicating l\/lanafort’s state of mind as it relates to the crimes
under investigation; . . . . 1and1

>1<>1<>1<

2. Computers or storage media used as a means to commit the
Subject Offenses.

Warrant, Notice Att. at 13-14.

On .luly 26, 2017, FBI agents executed the warrant and prepared an inventory of records
that they either seized or imaged on site. Warrant Return, Notice Att. at 2f1 l (listing financial
documents including bank statements, deposit slips, transaction registers; business and personal
records including documents concerning real estate and taxes; and an il\/lac desktop computer, a
l\/laeBook Air laptop computer, thumb drives, external hard drives, CDs, memory accessories to
cameras and printers, a “G drive,"` DVD disks, as well as an iPod, two iPads, and an iPhone). 'l`he
agents imaged many ofthe electronic devices, including the two computers, on site and left them
there. Gov’t Opp. at 6; Warrant Return, Notice Att. at 7-9.

As part ofthe seizure, agents identified ten sets ofdocuments as potentially covered by the
attorney client privilege Warrant Return, Notice Att. at 10-11. This material was separated and

made available to defense counsel. Gov’t Opp. at 6. The government utilized attorneys who were

not members of the trial team to screen electronic devices that had been seized for privileged
materials and used automated processes to screen for irrelevant materials Gov’t Opp. at 6. 'l`he
government described the procedure it was following for these purposes in correspondence with
defense counsel. Gov’t Opp. at 19-20; hettei‘ofNov. l7, 2017, Ex. A to Gov’tOpp. 1Dkt.# 284-11
(“Nov. 17 laetter") at 3, 11; Letter ofDec. 1, 2017, Ex. B to Gov’t Opp. [:Dkt. # 284-21 at 3.
LEGAL STANDARD
The l"`ourth Amendment to the United States Constitution states:
rl`he right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.

U.S. Const. amend. lV. The Supreme Court has explained that a search warrant is supported by
probable cause ifthere is a “fair probability that . . . evidence ofa crime will be found in a particular
place." [[li`m)/'s v. Ga/es, 462 U.S. 213, 238 (1983). Agents executing a search warrant must do
so “in a reasonable manner, appropriately limited to the scope and intensity called for by the
warrant.” Um`/ed S/ales v. Heldt, 668 F.2d 1238, 1256 (D.C. Cir. 1981). The proponent of a
motion to suppress bears the burden of establishing that his Fouith Amendmcnt rights were
violated by the challenged search or seizure. Rc//ms i). ]///'m)i`s, 439 U.S. 128, 130 n.l (1978).

ANALYSIS

Defendant argues that the warrant authorizing the search of his residence violated the
liourth Amendment because it was overbroad and it impermissibly authorized seizure of
electronic devices without probable cause. l-le also contends that agents violated the Fourth

Aniendment by seizing and retaining materials that fell outside the scope ofthe warrant

I. The search warrant was sufficiently particularized and not overbroad.

The Constitution limits searches by law enforcement to “the specific areas and things for
which there is probable cause to search,"` and it requires that a search “be carefully tailored to its
justifications" and “n<)t take on the character ofthe wide-ranging exploratory searches the Framers
intended to prohibit." M¢i)”y/c/nd v. (}ri/'/”/'son, 480 U.S. 79, 84 (1987). Accordingly, “[s]earch
warrants must be speeific.” Un/`Iea’Slcile.s' v. H/'!l, 459 F.3d 966, 973 (9th Cir. 2006). "Specilicity
has two aspects: particularity and breadth. Particularity is the requirement that the warrant must
clearly state what is sought Breadth deals with the requirement that the scope of the warrant be
limited by the probable cause on which the warrant is based.” Ia’., quoting Uri/'ted$m[es v. Tc)wi/ie,
997 F.2d 537, 544 (9th Cir. 1993).

Defendant contends that the warrant fails to "particularly describ[ej the place to be
searched, and the persons or things to be seized,” Def.’s l\/lot. at 2 (edits in original), quoting J(mes
v. K/`/”chrie)”, 835 F.3d 74, 79 (D.C. Cir. 2016) and Marron v. Un/'[edSlales, 275 U.S. 192, 195-96
(1927), and he points to the provisions in the warrant that call for the seizure of:

¢ “[ajny and all financial records," Warrant 11 la, Notice Att. at 13;

0 “[e]vidence indicating l\/lanafort’s state of mind as it relates to the crimes under
lnvestigation," Warrant 11 li, Notice Att. at 14; and

0 “[c]omputers or storage media used as a means to commit the Subject Offenses,”
Warrant11 2, Notice Att. at 14.

Def.’s l\/lot. at 2.

l\/lanafort’s objections are not well-takcn, though, because they ignore the fact that these
provisions are plainly limited by the scope ofthe overarching authorization to seize oiin "records
relating to” the specifically enumerated offenses See Warrant 11 1, Notice Att. at 13. 'fhe
application requested permission to search for and seize “records relating to” the subject offenses,

“/`ric]z/o’ing but nol limited io: . . . [a_'1ny and all financial records for Paul l\/lanafort, Jr.,

_ Richard Gates, or companies associated with 1them1 . . . [and] [e]vidence

indicating l\/fanafort’s state of mind as it relates to the crimes under investigation." Appl. Attach.
B 1111 l, la, li, Notice /-\tt. at 19_20 (emphasis added). ln other words, the categories Manafort
complains about are listed as examples ofthe types ofrecords that would be covered by the warrant
4 subsets ofthe set of responsive records bounded by the particular crimes under investigation

'fhe Supreme Court has held that individual phrases in a search warrant must be read in the
context ofthe rest ofthe warrant - in particular, the list ofoffenses - and not in isolation. AHdres'ei/i
v. Mciry/tii//d, 427 U.S. 463, 479~82 (1976). ln A//id/”eseri, the Court construed the broad grant of
authority to seize “otlier fruits, instrumentalities and evidence ofcrime at this (time) unknown" in
the context ofthe warrant’s “lengthy list of specified and particular items to be seized,"' id. at 479_
80, and it found that the warrant only permitted the executing officers “to search for and seize
evidence relevant to the crime [alleged] and 1the property at issue].” Id. at 481-82.

The defense asserts in his motion that authorizing a search for “‘any and all financial
records’ ofeveryone residing at the subject location is exceptionally broad,"` and that "nothing in
the affidavitjustifies so broad a warrant.” Def.’s l\/lot. at 3. But the f).C. Circuit held in Un/‘ler/
Slates v. Dcile, 991 F.2d 819, 846-50 (D.C. Cir. 1993) (per curium), that when a warrant
application, as here, alleges making a false statement in a tax return, a search for “any and all
financial records” related to that offense would be valid under the Fourth Amendment. The Court
explained that courts may “considei‘[ 71 the circumstances ofthe crime in assessing the degree of
particularity that should be required of descriptions of items to be seized in the warrant." [a’. at
848. Similarly, in Unilea’S/ale.s' v. Fa/tah, 858 F.3d 801, 819-20 (3d Cir. 2017), the court rejected
a challenge to a search warrant that authorized seizure of"all financial records" in a case involving

allegations including bank fraud and filing false tax returns lt held that the particularity

requirement is to be applied with flexibility, especially “in cases involving complex schemes
spanning many years that can be uncovered only by exacting scrutiny of intricate financial
records." Icl’., citing Um`le¢/Sicile.s' v. Chr/'sl/`/ie, 687 l".2d 749, 760 (3d Cir. 1982).

The offenses set forth in the affidavit justified a broad search of l\/fanaf`ort’s financial
records, and the facts alleged also supported the grant of permission to seize records belonging to
others 'f`he affidavit identified transfers of millions of dollars from the Cypriot bank accounts
allegedly funded by the Ukrainians to a number of U.S. accounts and entities associated with
1\/1anaf`ort anc-. Aff. 1111 21422. And the affidavit details alleged misrepresentations by
l\/lanafort to obtain bank loans and loan extensions,Aff.111123-46, including an alleged scheme by
a limited liability company owned by_ to obtain a multi-million dollar loan Aff.
111127, 34. Those facts supported the issuance ofa warrant to seize financial records belonging
not only to the defendant, but also- his business associate, and their affiliated companies

'l`he defense next argues that the provision allowing the seizure of` "[e]vidence indicating
l\/fanafort’s state ofmind as it relates to the crimes under investigation,” Warrant 11 li, Notice Att.
at 14, imposed no limits on the executing agents’ discretion because all of the alleged offenses
require knowledge and intent Def.’s 1\/fot. at 3. But this is precisely why this sort of provision
was permissible For example, records concerning one transaction may show a defendant’s intent
to defraud in another transaction See A)?dre.s'en, 427 U.S. at 483~84 (seizure of documents
refiecting unrelated transaction was permissible under the Fourth Amendment because the
documents could help show defendant’s intent); Um'ted Slales v. Woi”mi`ck, 709 F.2d 454, 459
(7th Cir. 1983), citing /fndrescn, 427 U.S. at 483 (evidence of other false statements may be
introduced to show that the false report at issue was part of an intentional scheme rather than an

accident or mistake).

Finally, the defendant complains that the second category of items the warrant permitted
the agents to seize - “[cjomputers or storage media used as a means to commit" the alleged
offenses, Warrant 11 2, Notice Att. at 14 ~ is also overbroad because it failed to limit the agents’
discretion in determining which computers or storage media fit that description Def.`s l\/fot. at 3.
But the only case he relies upon does not bear on this question

Courts consider the totality of circumstances in determining the validity of a warrant,
Gciles, 462 U.S. at 230, and a key factor to be considered is the information available to the
government This principle applies when agents have reason to believe that electronic devices will
bc found at a location, but cannot precisely identify them. li`or instance, in Uri/`IedS/cile.s' v. L()em,
59 F. Supp. 3d 1089 (D.N.l\/l. 2014), the court upheld a warrant authorizing seizure of “1a]ny
computers, cell phones, and/or electronic media that could have been used as a means to commit
the offenses described." Id. at 1099, 1 153. “Under the circumstances of the case, the agents had
no information with which they could have provided further clarity in the search warrant . . . . They
had no idea what computer equipment or electronic devices that 1the defendant] would have used
to access his electronic mail accounts, the hijacked electronic mail account, or the Domain, or
where he could have concealed evidence that he had done so.” [d. at l 152.

1\/fanafort states that the D.C. Circuit “found wanting a similar warrant" in t/)ifled.$`tcile.s' v.
Gri'/_"/i`/h, 867 F.3d 1265 (D.C. Cir. 2017). Def.’s Mot. at 3. But as the excerpt he quotes from the
case reveals, (}i”[{filh involved a warrant that "authorized the wholesale seizure of all electronic
devices discovered in the apartment, including items owned by third parties, see Def.’s l\/lot at 3,
quoting Gr(f/"il/i at 1270-71, and it did not involve a provision approving the seizure of devices
that had been “used” in specific offenses So the warrants are not “similar,” and the case is not

instructive on this point. Since the challenged provision in the warrant involving l\/lanafort’s

residence was limited to computers used in the particular offenses identified, it was clear that
provision did not authorize the wholesale removal of every electronic device in the house, and it
was not so vague or broad to require invalidation ofthe entire warrantl

Therefore, the Court holds that the search warrant was sufficiently particularized

II. The application contained ample grounds to believe that electronic records related
to the offenses identified in the warrant Would be stored on the premises

Relying on Gri[/"ilh again, l\/lanafort argues that the "affidavit does not establish probable
cause to believe that the electronic devices purportedly used in the commission of the subject
offenses are likely to be found in the l\/lanafoit flome." Def.`s l\/lot. at 4~5, quoting G/'i`{/"ii//i, 867
13.3d at 1271 (“A search warrant . . . is grounded in probable cause to believe that the legitimate
object of a search is located in a particular place.”).

The law is clear that an affidavit in support of a warrant application “must provide the
magistrate with a substantial basis for determining the existence of probable cause," and it cannot
consist of"wholly conclusory statement[sj.” (}ci/es, 462 U.S. at 239. “[P]robable cause is a fluid
concept ~ turning on the assessment ofprobabilities in particular factual contexts - not readily, or
even usefully, reduced to a neat set oflegal rules.” Ir,/. at 232. The Supreme Couit has recognized
that the "task of the issuing magistrate is simply to make a practical, common-sense decision
whether, given all the circumstances set forth in the affidavit before him, including the `veracity’
and ‘basis ofknowledge’ ofpersons supplying hearsay information, there is a fair probability that
. . . evidence ofa crime will be found in a particular place.” [d. at 238 (abandoning the rigid two-
prong test for determining informant veracity in favor of`a totality ofcircumstances approach).

l\/lanafort’s objections to the warrant on these grounds fall short for several reasons First,
it was not necessary for the agent to allege that the electronic devices on the premises had

themselves been used in the commission of the offense; while the warrant did call for the seizure

of any that had, see Warrant 11 2, Notice Att. at 14, it also authorized the search of electronic
devices for relevant records that might be stored on them. Warrant, Notice Att. at 12. Thus, it was
sufficient that the affidavit provided reason to believe that evidence related to the crimes listed iii
the warrant would be stored on the devices in the home See Gri/_‘/"i`lh, 867 F.3d at 1273 (tojustify
the search for and seizure of a cell phone, “police needed reason to think not only that 1the
defendant] possessed a phone, but also that the device would bc located in the home and would
contain incriminating evidence about his suspected offense"`).

Second, once more, G/”i}_‘/"ilh is distinguishable ln that case, the police were following leads
in a year-old murder case. The D.C. Circuit invalidated the warrant because “the affidavit failed
to establish probable cause to believe that any cell phone (or other electronic device) containing
incriminating information about Griff'ith’s suspected offense would be found in the apartment."
867 F.3d at 1279 (emphasis in original). fl`he Court of Appeals noted the lack of any allegation in
the affidavit that the defendant even possessed a cell phone, as well as the absence of any evidence
that he was still in possession of the same cell phone he might have used at the time ofthe murder
under investigation lci. at 1278. Also, Griffith had been incarcerated on other charges in the
interim. Thc Couit was therefore concerned that even ifGriffith did own a phone at the time the
agent applied for the warrant, there were no facts in the affidavit suggesting that it would still
contain evidence from the year before, or, if he had obtained a new phone, that it would contain
anything of value And there were no facts tying phones belonging to any other occupant ofthe
apartment to the offense at all. See id. at 1276. At bottom, the problem in Gi”i/_‘/"i`th was the failure
to articulate any connection between the items to be seized and the crime that was being
investigated; the Circuit based its ruling on the “limited likelihood that any cell phone discovered

in the apartment would contain incriminating evidence ofGriffith’s suspected crime." Ia’. at 1275.

That is hardly a problem in this case The crimes for which probable cause was set forth
in the affidavit relate to the conduct of an international business operation and international
financial transactions, and they involve activities for which records are ordinarily generated and
often retained on electronic media l\/loreover, the agent specifically averred, based on information
provided by a person with knowledge, that l\/fanaf`ort maintained business records in his home and
conducted business with his computer. Aff.111165, 69. ln particular, the allegations in paragraphs
64, 65, 66, and 68, 69, and 70 ofthe affidavit set forth what was missing in Gri#ith, and therefore,
that case does not require the exclusion ofthe evidence here

The affidavit included information from a source with knowledge of how the defendant
maintained his electronic records rl`he source was an individual who had worked for l\/fanafort’s
consulting business, and then worked for l\/lanafoi't directly. Aff. 1 62. lnformation from the
source about the contents of a storage unit used by l\/fanafort had proved to be accurate, Aff.1163,
and he was last inside the residence approximately two weeks before the agent applied for the
search warrant for that location Aff. 1167. ln other words, the source had the necessary “basis of
knowledge" for what he reported concerning defendant`s use of electronic devices Goies, 462
U.S. at 238.

1"urthermore, the source told the agent that l\/lanafort used a l\/lac desktop computer in his
home office in the residence, “frequently stored" historical and current records on “external hard
drives, thumb drives, and magnetic disks," “made widespread usc ofelectronic media in the course
of his business activity," and had kept a "drawer full of phones and electronic equipment” at a
prior residence Aff.11 76.

'l`he affidavit also contained other facts indicating that electronic devices in the residence

would likely contain evidence of the alleged crimes The government had already obtained

numerous email communications related to the offenses of interest, including exchanges with
Gates concerning l?`ARA reporting requirements, Aff. 1| 19; emails related to the payment of`vendors
using funds from a Cypriot account, Aff. 11 14; and_
- Thus, the affidavit presented grounds for the l\/lagistrate fudge to conclude that there
was probable cause to believe that l\/lanafort regularly relied on electronic communications in the
conduct of his affairs, that electronic devices used by defendant could be found in the Alexandria
residence, and that they would contain evidence of the alleged crimes See (}/”i/_‘/"ilh, 867 li.3d at
1273 (stating that probable cause may be based on a "reliable indication ofa suspect’s possession”
of a device and reason to think the device “would contain incriminating evidence about his
suspected offense”).

III. The agents relied in good faith on a warrant signed by a federal Magistrate Judge,
and therefore, the exclusionary rule does not apply.

As the Court found in connection with the warrant to search the contents ofthe storage unit
in this case, Unilea’ Stales v. Mom;/orl, No. 17-CR-0201, 2018 WL 3079474 (D.D.C. June 21,
2018), the evidence seized while executing the warrant for the residence should not be suppressed
even ifthis Court could find reasons to differ with the issuing magistrate 'The agents were acting
within the scope of a valid warrant when they conducted the search, and their reliance on the
warrant issued by the l\/lagistrate `ludge was objectively reasonable According to the Supreme
Court, in those circumstances, exclusion is not the appropriate remedy. Unilea’ Sioles v. Leori,
468 U.S. 897, 920-22 (1984). This good faith exception to the exclusionary rule applies not only
when a reviewing court concludes that the affidavit in support of the warrant lacked probable
cause, but also to warrants later found to be overbroad See /V[cissochuseits v. Sheppcii”d, 468 U.S.

981, 987-91 (1984); UHiledS/ri/e.s' v. Moxwell, 920 l"`.2d 1028, 1034 (D.C. Cir. 1990).

ln Le()n, the Court made it clear that suppression is not available as a remedy in every
situation in which a reviewing court concludes that there has been a constitutional violation, and
the D.C. Circuit has reiterated that a mere disagreement with the issuing court is not sufficient to
justify the exclusion of evidence “That is because the ‘exclusionary rule was adopted to deter

’5`

unlawful searches by police not to punish the errors of magistrates and judges UniledSlci/es v.
Spencer, 530 F.3d 1003, 1006 (D.C. Cir. 2008), quoting Sheppo)”o’, 468 U.S. at 990. The Supreme
Court recognized that “1i]n the ordinary case, an officer cannot bc expected to question the
magistrate’s probable-cause determination or his judgment that the form of the warrant is
technically sufficient.” Leori, 468 U.S. at 921. “Nevei'tlieless, the officer’s reliance on the
magistrate’s probable-cause determination and on the technical sufficiency ofthe warrant he issues
must be objectively reasonable . . . .” [d. at 922.

l\/lanafort’s argument that it was not reasonable for the agents to rely on the warrant here
is largely conclusory; he simply repeats his complaint that the warrant was flawed because it
authorized the seizure of“any and all financial records" as well as broad categories of electronic
devices and storage media. Def.`s l\/lot. at 3. But this does not negate the proposition that the
agents were entitled to rely on the judgment and expertise of the federal l\/lagistrate Judge who
reviewed and signed the warrant And, as explained above, the warrant is sufficiently
particularized, and the nature and number of criminal offenses under investigation justified a
search for broad categories of business records which are often stored on computers and other
devices, so it was not objectively unreasonable for the agents to rely upon the l\/lagistrate ludge’s
decision to permit the search.

Defendant again points the Court to the opinion of the D.C. Circuit in Ur/i'ied Sioles v.

G/”iffith, in which the Court found a search warrant to be both so lacking in probable cause to

believe that evidence would be found on the premises, and so overbroad in its description ofthe
items to be seized, that it ordered the evidence to be excluded notwithstanding Leon Def.’s l\/lot.
at 5-6, citing 867 17.3d at 1278. But the defense again places too much weight on that decision,
which did not purport to narrow the Leoi/i principle, but simply found it to be “inapplicable in the
particular circumstances” ofthat case. Gl”i/"}i`lh, 867 F.3d at 1278.3

G/”i)_‘f`il/i is inapposite primarily because the decision to suppress was based on the unique
combination ofthe Court’s finding that the affidavit was “so lacking in indicia ofprobable cause
as to render official belief in its existence entirely unreasonable," 867 F.3d at 1278, quoting Leoii,
468 U.S. at 923, and the concerns about overbreadth While Griffith, the individual under
investigation, lived in an apartment leased by his girlfriend, "the warrant did not stop with any
devices owned by Gri’f`fith, which already would have gone too far. lt broadly authorized seizure
of all cell phones and electronic devices, without regard to ownership.” Ia'. at 1276 (emphasis in
original). fl`his compounded the problem the Court of /\ppeals had already identified, that "the
affidavit failed to establish probable cause to believe that any cell phone (or other electronic
device) containing incriminating information about [the defendant’s] suspected offense would be
found in the apartment." [d. at 1279 (emphasis in original); see also id. at 1278 (“['fjhe affidavit
sought, and the warrant grantcd, authorization to search for and seize every electronic device found
in the home. The warrant`s material overbreadth in that regard underscored the police’s
unawareness ofthe existence of any such devices in the first place (much less the existence of any

belonging to Griffith) . . . ."`).

3 'l`he defense acknowledged that Gri/_‘j‘i`lli did not change the legal standard ’fr. at 72_73.
("‘THE COURT: You don’t suggest thatjust because Gi”i[/ilh decided to find an exception, that it
has purported to change the standard applicable in these cases? l\/fR. WESTl_/lNG: l don’t think
that we say that it has changed the standard.”).

16

Thus, there is little in the opinion that bears on the case at hand 'l"he claimed overbreadth
here is not comparable since the warrant application did not ask for devices or files with no
connection to l\/lanafort or the financial transfers to him - that were the subject of FBl
scrutiny. And unlike the affidavit that failed to aver that Griffith even had a cell phone, much less
a cell phone that might still contain messages that had been exchanged about a murder a year
before, the affidavit here supplied reason to believe that the business and banking records that were
the object ofthe search had been seen and could still be found in the premises to be searched

IV. The government’s execution ofthe search Warrant and retention of seized materials
did not violate the Fourth Amendment.

liinally, the defense argues that the agents who executed the search warrant exceeded its
scope when they seized or copied “every electronic and media device in the l\/lanafort Home,"
including an Apple iPod and other music devices and cameras and video cameras Def".’s l\/lot.
at 7. Defendant asserts that agents could not have reasonably believed these devices were “used
in the commission ofthe subject offenses.” Def.’s l\/lot. at 6-7, quoting Helo't, 668 F.2d at 1256,
1260 (holding that “the search itself must be conducted in a reasonable manner, appropriately
limited to the scope and intensity called for by the warrant,” requiring an officer to execute a search
“strictly within the bounds set by the warrant"); see also Dcf.’s Reply at 3-4.

But, as noted earlier, the warrant authorized the seizure of records stored on electronic
devices related to the alleged offenses, not just devices used to commit the alleged crimes
l)aragraph 2 of Attachment 13 - ltems to be Seized ~ did call for “[c]omputers or storage media
used as a means to commit the Subject Offenses.” Warrant112,1\10tice Att. at 14. But Paragraph 1
of Attachment B authorized a search for and the seizure of “[if|ecoi‘ds relating to" the subject
offenses Warrant 11 l, Notice Att. at 13, and the warrant defines “i‘ecoi‘ds" to include “all forms of

creation or storage, including any form of computer or electronic storage (such as hard disks or

17

other media that can store data) . . . and any photographic form (such as . . . videotapes, motion
pictures, or photocopies).” Warrant at 3, Notice Att. at 15. While devices such as an iPod Touch
are primarily used to play music or videos, see Def.’s l\/lot. at 7, they are also "storage media” that
can be used to store files or photographs of important records See, e.g., UHi/ea’S/a/es v. Ballai”a',
551 F. /~\pp’x. 33, 36 (3d Cir. 2014) (unpublished) (personal information relevant to identity-
theft scheme found on iPod); UniledSiales v. ()keayaimieli, No. 1 l-cr-87, 201 1 WL 2457395, at
*10 (D. l\/linn. l\/fay 13, 2011) (affidavit established probable cause to believe that an iPod was
among the devices used to store and transmit information in a fraud and identity-theft scheme).
'l`hus, agents did not exceed the scope of the warrant when they seized or copied il)ods, cameras,
or other electronic media that could be used to store materials related to the alleged offenses

Finally, l\/lanafort complains in this motion that the government violated his l"ourth
/-\mendment rights by failing to return those materials seized that were not covered by the warrant
llc told the Court, "'1:t10 date, the government has not represented that the materials seized were
subject to any process or procedure to insure the government oiin retained materials within the
scope of the search warrant 'l`he government has only represented that the materials have been
subject to aprivilege rcview." Def.’s l\/lot. at 7 (emphasis in original).

The government responded that it imaged as many of the devices and storage media as
possible on site so that it would not have to take them all. Gov’t Opp. at 19; Notice Att. at 7-9
(1isting thirty-one items digitally imaged on the premises, including an Apple il\/lac, a l_\/lac Book
Air, and numerous flash drives). The agents then utilized an automated process to segregate
categories of irrelevant and privileged information from what had been seized or imaged. Gov’t
Opp. at 19. l\/leanwhile, prosecutors communicated with the defense in November and December

of`2017, explaining the review protocol and offering to discuss it with counsel:

ln particular, these materials are being processed to segregate out both
privileged material (including, for examplc, those instances where 1\/1anafort
is the sole privilege holder) and personal material that is irrelevant to the
prosecution lf you would like to discuss in further detail what these
processes entail, please let us know. . . . The government also has obtained
possession of other electronic devices (including computers), which . . . are
being processed and/or reviewed by a separate taint team of agents and
prosecutors to ensure that the prosecution team is not provided with any
privileged material.
Nov. 17 better at 3.

According to the government the defendant did not ask to review the materials that had
been sorted pursuant to the government’s protocol; he did not suggest that the protocol was
inadequate to segregate material that fell outside the scope of the warrant; and he did not ask the
government to return any materials found to be outside the scope ofthe warrant Gov’t Opp. at 20.
So, there seems to be little to defendant’s contention that materials seized were not subject to the
necessary review, and defendant has not pointed to circumstances that require suppression

'fhis case does not present the sorts ofproblems identified in the cases cited in def`endant`s
pleadings ln Ui/iitea’Slales v. Mellei”, 860 F. Supp. 2d 205, 214-16 (E.D.N.Y. 2012), the court
held that the government’s failure to review electronic records fifteen months after seizing them
was “unreasonable and disturbing” and constituted bad faith given repeated requests from defense
counsel and orders from the court to do so. flere, the November correspondence reveals that the
government was already in the process of reviewing seized materials within four months of
executing the search warrant See Nov. 17 Letter at 3. And in Ui/iiled Siates v. Debbi, 244 F.

Supp. 2d 235, 237-38 (S.D.N.Y. 2003), the court found that agents seized many records from a

doctor`s office that “plainly" fell outside the parameters of the search warrant, “such as personal

.,

and religious files, general correspondence family financial records, land] private patient records’

and did not attempt to separate them from evidence ofthe subject crimes either during or after the

search. Here, the government took responsible steps to segregate privileged or irrelevant material
and offered to provide more detail on its processes to defense counsel. See Nov. 17 Letter at 3.
At the hearing, defense counsel also complained that the government had not yet returned
any paper records it has found to be irrelevant, Tr. at 69, and neither side could state definitively
whether electronic devices that are not needed have been returned See Tr. at 80. The defendant
did not file a motion for return of property, see Fed. R. Crim. l)roc. 4l(g), but with respect to the
retention of seized materials, the government will be ordered to return any paper records it has
determined fall outside the warrant Regarding electronic devices that were seized, in particular,
devices such as il)ods or cameras that are not used primarily to store records or to transmit
communications the Court will order the parties to confer and file a status report on whether there
are any that can be returned that have not yet been delivered As for imaged devices, they pose no
constitutional problem. Courts have upheld the government’s retention of images created during
the execution ofa search warrant given the need to authenticate exhibits at a later date. See Unilea’
Slaies v. Ganias, 824 F.3d 199, 215~16 (2d Cir. 2016) (prosecutors may need to retain a digital
storage medium or its forensic copy "during the course of an investigation and prosecution, to
permit the accurate extraction ofthe primary evidentiary material sought pursuant to the warrant;
to secure metadata and other probative evidence stored in the interstices of the storage medium;
and to preserve, authenticate, and effectively present at trial the evidence thus lawfully
obtained""), cert denied, 137 S. Ct. 569 (2016). Thus, the government’s retention of imaged

electronic devices seized from the residence does not violate the Fourth Amendment, particularly

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since defendant retains the originals, and the defense has pointed to no other circumstances that
would ca11 for the exclusion ofthe evidence obtained from the residence

C()NCLUSI()N

For the reasons stated above, it is ORDERED that defendant’s motion to suppress the
evidence obtained from the search ofhis /-\lexandria residence [Dkt. # 2641 is hereby DENIED. lt
is FURTHER ORDERED that the government must return to defendant any paper documents or
electronic devices that it has determined are irrelevant to the case by August 17, 2018, and that the
parties shall confer and file a status report by that date stating whether there are any electronic

devices in the government’s possession _ as opposed to imaged copies of those devices - that

dg_M-

Al\/lY BER|\/lAN .l/\CKSON
United States District Judge

remain in dispute

SO ORDERED.

DATE: July 18, 2018

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