Case 3:15-cr-05351-RJB Document 127 Filed 01/21/16 Page 1 of 9 1 JUDGE ROBERT J. BRYAN 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 9 UNITED STATES OF AMERICA, 10 Plaintiff, 11 12 v. JAY MICHAUD, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) No. CR15-5351RJB RESPONSE TO COURT’S ENUMERATED QUESTIONS (Dkt. 125) AND MOTION FOR MODIFICATION OF APPEARANCE BOND [Hearing: January 22, 2016] NOTED: January 29, 2016 15 16 17 I. Defense Response In response to the questions directed to counsel in the Court’s January 20, 2016, Order Regarding Hearings, Mr. Michaud respectfully responds as follows: 18 19 20 1. “Was the NIT a Search? If so, when and where?” The Government does not dispute that its NITs searched for and seized data from 21 the “activating” or target computers after the Government’s malware was delivered to 22 and loaded onto those computers. See Dkt. 69-A (Findings and Recommendations in 23 Cottom, et al) at A-004 (where the Government agreed and stipulated that the NITs in 24 that case “effected a Fourth Amendment search of an activating computer”); Dkt. 90 25 (Govt. Response to Second Motion to Suppress) at 14, ll. 12-16 (“Moreover, the [NIT] 26 affidavit specifically requested authority for the NIT to ‘cause an activating computer – RESPONSE TO COURT’S ENUMERATED QUESTIONS AND MOTION FOR MODIFICATION OF APPEARANCE BOND (United States v. Michaud; CR15-5351RJB) - 1 FEDERAL PUBLIC DEFENDER 1331 Broadway, Suite 400 Tacoma, WA 98402 (253) 593-6710 Case 3:15-cr-05351-RJB Document 127 Filed 01/21/16 Page 2 of 9 1 wherever located – to send to a computer controlled by or known to the 2 government…messages containing information that may assist in identifying the 3 computer, its location, other information about the computer and the user of the 4 computer,’” all of which was not otherwise transmitted to Virginia or stored in 5 “Website A’s” Virginia server); id. (Dkt 90) at 19, ll. 8-11 (“[W]hile the government 6 may not have had probable cause to search Michaud’s computer at the time the warrant 7 was issued. . . that fact is of no moment as the NIT sufficed as a constitutional 8 ‘anticipatory warrant’”) (emphasis added). Indeed, in one of its pleadings, the 9 Government titled part of its argument, in bold, as “The extent of information seized 10 from Michaud’s computer.” Dkt. 74 (Govt. Response to Defendant’s Motion to 11 Compel) at 7, l. 8 (italics added). 12 Accordingly, there is no credible dispute at this juncture that the NIT deployed 13 against Mr. Michaud’s Washington computer effected a search on that computer, seized 14 data stored on it, and then transmitted the data to the FBI. See In re Warrant, 958 F. 15 Supp. 2d 753, 757 (S.D. Tex. 2013) (“Contrary to the current metaphor often used by 16 Internet-based service providers, digital information is not actually stored in clouds; it 17 resides on a computer or some other form of electronic media that has a physical 18 location.”). 19 As to when that search occurred, according to the application in support of a 20 warrant to search Mr. Michaud’s home, one or more NITs seized and transmitted data 21 from his computer in Vancouver, Washington, sometime between February 21 and 22 March 2, 2015. Dkt. 26, exh. A (July 9, 2015, residential search warrant) at A-023 23 (Bates 195) at ¶ 28). This was after the NIT warrant was issued and while the site was 24 being operated by the FBI. 25 26 RESPONSE TO COURT’S ENUMERATED QUESTIONS AND MOTION FOR MODIFICATION OF APPEARANCE BOND (United States v. Michaud; CR15-5351RJB) - 2 FEDERAL PUBLIC DEFENDER 1331 Broadway, Suite 400 Tacoma, WA 98402 (253) 593-6710 Case 3:15-cr-05351-RJB Document 127 Filed 01/21/16 Page 3 of 9 1 2. “If the NIT authorizing warrant had been issued by a District Judge, what role, if any, would FRCrP 41 play?” 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 It would make no difference whether a Magistrate Judge or District Court Judge had issued the NIT warrant. Presumably, when Rule 41 was originally drafted, the Advisory Committee assumed search warrants would be handled exclusively by Magistrate Judges, rather than District Court judges. Alternatively, the references to “magistrate judges” in the Rule are simply used in the sense generally associated with the Fourth Amendment’s requirement that warrants be issued by a “neutral and detached magistrate.” In any event, it would be hard to argue that the requirements for issuing a valid warrant differed merely because a different type of “magistrate” was issuing it. Consistent with this conclusion, defense counsel has been unable to locate any case law that distinguishes District Court Judges from “magistrate judges” for purposes of meeting the requirements of Rule 41 or otherwise issuing a valid warrant. Moreover, in this case, the NIT warrant was in fact issued by a Magistrate Judge. Dkt. 26, exh. C at C-002 (Bates 135). 3. “What is the relationship between 18 U.S.C. § 3103 and FRCrP 41 and 18 U.S.C. § 3103a, as applied to the facts here?” 18 19 18 U.S.C. § 3103 codifies Rule 41. See Dkt. 69 (Reply to Govt. Response to 20 First Motion to Suppress) at 4 (“it is important to recognize that Rule 41 and its 21 provisions have the force of law and are not, as the Government’s response seems to 22 suggest, merely advisory, procedural or susceptible to whatever interpretation suits its 23 purposes”). Section 3103 was enacted in 1948, 62. Stat. 819. Like several other 24 sections enacted at the same time, it does nothing but refer to Rule 41, in this case as 25 establishing the “Grounds for issuing search warrant.” See Exh. B (62 Stat. 819). It 26 RESPONSE TO COURT’S ENUMERATED QUESTIONS AND MOTION FOR MODIFICATION OF APPEARANCE BOND (United States v. Michaud; CR15-5351RJB) - 3 FEDERAL PUBLIC DEFENDER 1331 Broadway, Suite 400 Tacoma, WA 98402 (253) 593-6710 Case 3:15-cr-05351-RJB Document 127 Filed 01/21/16 Page 4 of 9 1 therefore has no impact on what is permissible under Rule 41 beyond the provisions of 2 the Rule itself. 3 4 Section 3103A was enacted in 1968, 82 Stat. 238. See Exh. C. In its entirety, as originally enacted, it contained the language now set forth in § 3103a(a), namely: 5 In addition to the grounds for issuing a warrant in section 3103 of this title, a warrant may be issued to search for and seize any property that constitutes evidence of a criminal offense in violation of the laws of the United States. 6 7 8 9 Subsequently, Rule 41 was modified in 1972. Among the changes was one modifying Rule 41(b) to track the language in § 3103a(a) by authorizing the seizure of 10 any “property that constitutes evidence of the commission of a criminal offense[.]” 11 (There were also modifications to the language regarding what contraband could be 12 seized). Compare Exh. D (Rule 41, 1973 version) with Exh. E (Rule 41, 1971 13 version). 1 As explained in United States v. Rubio, 727 F.2d 786, 792–93 (9th Cir. 14 1983): 15 16 17 18 19 20 21 22 23 24 25 1 Prior to the amendment, section (b) read: Grounds for Issuance. A warrant may be issued under this rule to search for and seize any property (1) Stolen or embezzled in violation of the laws of the United States; or (2) Designed or intended for use or which is or has been used as the means of committing a criminal offense; or (3) Possessed, controlled, or designed or intended for use or which is or has been used in violation of Title 18, U.S.C. § 957. Subsequent to amendment, section (b) read: Property Which May Be Seized With a Warrant: A warrant may be issued under this rule to search for and seize any (1) property that constitutes evidence of the commission of a criminal offense; or (2) contraband, the fruits of a crime, or things otherwise criminally possessed; or (3) property designed or intended for use or which is or has been used as the means of committing a criminal offense. 26 (Emphasis added). RESPONSE TO COURT’S ENUMERATED QUESTIONS AND MOTION FOR MODIFICATION OF APPEARANCE BOND (United States v. Michaud; CR15-5351RJB) - 4 FEDERAL PUBLIC DEFENDER 1331 Broadway, Suite 400 Tacoma, WA 98402 (253) 593-6710 Case 3:15-cr-05351-RJB Document 127 Filed 01/21/16 Page 5 of 9 1 2 3 4 5 6 7 8 9 The Supreme Court overturned the mere evidence rule in Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L.Ed.2d 782 (1967). . . . After Warden, the Federal Rules of Criminal Procedure were modified to authorize the issuance of a warrant to search for items of solely evidential value. Fed. R. Crim. P. 41(b). See also 18 U.S.C. § 3103a (a warrant may be issued to search for and seize any property that constitutes evidence of a criminal offense). In other words, § 3103a(a) was enacted to codify elimination of the “mere evidence” rule, and did not alter or expand the limitations otherwise imposed by Rule 41, which was itself subsequently amended to recognize the holding in Warden. The Notes of the 1972 Advisory Committee on Rules confirm that this was the purpose of the amendment: 10 11 12 13 14 Subdivision (b) is also changed to modernize the language used to describe the property which may be seized with a lawfully issued search warrant and to take account of a recent Supreme Court decision (Warden v. Haden, 387 U.S. 294 (1967)) and recent congressional action (18 U.S.C. §3103a) which authorize the issuance of a search warrant to search for items of solely evidential value. 18 U.S.C. §3103a provides that “a warrant may be issued to search for and seize any property that constitutes evidence of a criminal offense. . . .” 15 16 Given this record, § 3103A was presumably enacted in light of Warden because 17 that could occur more quickly than an amendment to the Rule, although the defense has 18 located no authority explicitly stating so. In any event, the import of the enactment of 19 § 3103(a), and the subsequent comparable modification to Rule 41, served to effect 20 only one change; it broadened the category of items for which a warrant could issue, so 21 that “mere evidence” could now be seized, just as the Supreme Court had authorized in 22 Warden. The defense has never questioned the Government’s authority to seize “mere 23 evidence,” assuming that other requirements of Rule 41 and the Constitution are 24 25 26 RESPONSE TO COURT’S ENUMERATED QUESTIONS AND MOTION FOR MODIFICATION OF APPEARANCE BOND (United States v. Michaud; CR15-5351RJB) - 5 FEDERAL PUBLIC DEFENDER 1331 Broadway, Suite 400 Tacoma, WA 98402 (253) 593-6710 Case 3:15-cr-05351-RJB Document 127 Filed 01/21/16 Page 6 of 9 1 complied with. Rather, this case involves the territorial limitations of Rule 41, a matter 2 completely unaffected by the enactment of § 3103(a). 2 3 Finally, it is important to note that the Government has not disputed that Rule 41 4 applies to the NIT warrant or argued that some other law alters or expands the Rule’s 5 requirement. Instead, the Government has argued that the Rule is “flexible,” despite its 6 plain language, and has proposed several novel and unpersuasive interpretations of the 7 Rule that cannot be reconciled with that language. See Dkt. 47 (Govt. Response to First 8 Motion to Suppress) at 9-16; Dkt. 69 at (Defendant’s response to the Government’s 9 Rule 41 arguments) at 3-16. 10 In sum, nothing in either of these statutes in any way alters or undercuts the 11 territorial limitations of Rule 41 and thus have no relevance when applied to the facts of 12 this case. 13 4. “If FRCrP 41 was Violated, What is the Appropriate Remedy?” 14 Suppression is not only the appropriate remedy, it is required by Ninth Circuit 15 16 17 precedent. United States v. Weiland, 420 F.3d 1062 (9th Cir. 2005). In Weiland, the court stated: Suppression of evidence obtained through a search that violates Federal Rule of Criminal Procedure 41 is required only if: 1) the violation rises to a ‘constitutional magnitude;’ 2) the defendant was prejudiced, in the sense that the search would not have occurred or would not have been so abrasive if law enforcement had followed the Rule; or 3) officers acted in ‘intentional and deliberate disregard’ of a provision in the Rule. 18 19 20 21 22 United States v. Weiland, 420 F.3d 1062, 1071 (9th Cir. 2005). As discussed in detail 23 in prior pleadings, running afoul of any one of these prongs requires suppression, and 24 25 Subsequent to its enactment, § 3103a has been amended twice, adding subsections (b) – (d), regarding delays in notification and reports of those delays. Those subsections also have no bearing on this case. 2 26 RESPONSE TO COURT’S ENUMERATED QUESTIONS AND MOTION FOR MODIFICATION OF APPEARANCE BOND (United States v. Michaud; CR15-5351RJB) - 6 FEDERAL PUBLIC DEFENDER 1331 Broadway, Suite 400 Tacoma, WA 98402 (253) 593-6710 Case 3:15-cr-05351-RJB Document 127 Filed 01/21/16 Page 7 of 9 1 the Government in this case has achieved a trifecta: the Government deliberately 2 violated the Rule; the violation is of constitutional magnitude; and Mr. Michaud was 3 prejudiced because the search of his computer “would not have occurred” but for the 4 Government’s obtaining of an NIT warrant that violated the Rule’s jurisdictional limits. 5 See Dkt. 26 (Mr. Michaud’s First Motion to Suppress) at 14-18; Dkt. 111 (Mr. 6 Michaud’s Consolidated Reply) at 15-17; see also United States v. Glover, 736 F.3d 7 509, 515 (D.C. Cir. 2014) (the language of Rule 41(b)(2) is “crystal clear” and a 8 “jurisdictional flaw” in the warrant cannot be excused as a “technical defect”). 9 Moreover, it bears repeating that, regardless of Rule 41, suppression is the 10 appropriate remedy because the Government violated the NIT warrant’s express 11 limitation on the location of the searches it authorized to computers or other property in 12 the Eastern District of Virginia; the Government ignored the “triggering conditions” for 13 executing NIT searches pursuant to an anticipatory warrant; the Government 14 intentionally or recklessly made false or misleading statements in the NIT warrant 15 application; the Government engaged in illegal conduct by aiding and abetting the 16 distribution of child pornography; and, considering the Fourth Amendment’s core 17 reasonableness requirements and the totality of the circumstances, it obtained an 18 unprecedently overbroad general warrant. See Dkt. 111. 29-35 (citing the leading cases 19 for these points and cross-referencing the pleadings where these arguments are laid out 20 in detail for the Court). 21 II. Motion for Modification of the Conditions of Mr. Michaud’s Bond 22 23 24 25 26 The Court has added Mr. Michaud’s arraignment on the Superseding Indictment to the January 22 calendar. The defense requests that, at that time, the Court modify the terms and conditions of Mr. Michaud’s pre-trial release to reduce the electronic home monitoring (EHM) restrictions to the minimum of passive GPS location monitoring, RESPONSE TO COURT’S ENUMERATED QUESTIONS AND MOTION FOR MODIFICATION OF APPEARANCE BOND (United States v. Michaud; CR15-5351RJB) - 7 FEDERAL PUBLIC DEFENDER 1331 Broadway, Suite 400 Tacoma, WA 98402 (253) 593-6710 Case 3:15-cr-05351-RJB Document 127 Filed 01/21/16 Page 8 of 9 1 with no home detention or curfew. As set forth in the accompanying letter of Dr. C. 2 Kirk Johnson, Mr. Michaud has voluntarily undertaken a psychological evaluation and 3 polygraph testing. See exh. A (letter from Dr. Johnson and his curriculum vitae). 4 While Dr. Johnson has not drafted a final report, he has concluded that Mr. Michaud is 5 a “pro-social individual” and falls into the category of “low risk individuals” for 6 purposes of assessing his potential risk to the community. In addition, Mr. Michaud has 7 been on pre-trial release since July 16, 2015, and he has fully complied with the 8 requirements of supervision. 9 III. Unsealing the Record 10 11 12 13 14 15 16 17 18 The defense has no objection to the Court unsealing the entire record. In fact, on January 6, 2016, the defense wrote to the Government and asked it to agree to unseal the record. On January 8, the Government notified the defense that it would not consider doing so until after the January 22 hearing. DATED this 21st day of January, 2016. Respectfully submitted, s/ Colin Fieman s/ Linda Sullivan Attorneys for Jay Michaud 19 20 21 22 23 24 25 26 RESPONSE TO COURT’S ENUMERATED QUESTIONS AND MOTION FOR MODIFICATION OF APPEARANCE BOND (United States v. Michaud; CR15-5351RJB) - 8 FEDERAL PUBLIC DEFENDER 1331 Broadway, Suite 400 Tacoma, WA 98402 (253) 593-6710 Case 3:15-cr-05351-RJB Document 127 Filed 01/21/16 Page 9 of 9 1 CERTIFICATE OF SERVICAE 2 I hereby certify that on January 21, 2016 I electronically filed the foregoing 3 document with the Clerk of the Court using the CM/ECF system, which will send 4 notification of filing to all registered parties. 5 6 s/ Amy Strickling Paralegal Federal Public Defender 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 RESPONSE TO COURT’S ENUMERATED QUESTIONS AND MOTION FOR MODIFICATION OF APPEARANCE BOND (United States v. Michaud; CR15-5351RJB) - 9 FEDERAL PUBLIC DEFENDER 1331 Broadway, Suite 400 Tacoma, WA 98402 (253) 593-6710