To: The Honorable Thomas J. Rueter

Page 3 of 9

2015-08-26 20:15:20 (GM l)

Law Offices of Perry de Marco. Jr.
BY: PERRY de MARCO, SR.
Identification No. 90586
Centre Square, West Tower
1500 Market Street. Suite 4100
Philadelphia, PA 19102
215.563.6100

Attorney for Petitioner
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

IN THE MATIER OF THE SEARCH

OF SEIZED ITEMS:

Apple Mac Pro Computer
Apple iPhone 5 Plus Cellular Telephone
Western Digital My Book for Mac External
Hard Drive
Western Digital My Book VelociRaptor
Duo External Hard Drive

No. 15-850-M

MOllON TO QUASH GOVERNMENT'S APPLICAllON TO COMPEL
It is respectfully suggested that the Honorable Court quash the government's
application to compel respondent to divulge alleged passwords in his i:ossession

because said compulsion clearly violates his constitutional right against selfincrimination. The Self-Incrimination Clause of the Fifth Amendment of the United
States Constitution states that "no person ... shall be compelled in any criminal case
to be a witness against himself."U.S. CONST. amend. V. Nevertheless. "the privilege
protects a person only against being incriminated by his own compelled testimonial
communications." F1Sher v. United states. 425 U.S. 391, 409 (1976), and where the
communication is not testimonial, it is not protected by the Fifth Amendment. For
example, documents voluntarily prepared by the defendant are not testimonial. Id.
Thus, the privilege applies when the information being sought is compelled,
incriminating in nature. and testimonial. Fisher, 425 U.S. at 408.
Respondentsubmitsthatthecompelled production of the alleged passwords
violates his Frfth Amendment privilege against self~incrimination. His act of production
ofthealleged passwordssoughtwouldbeessentiallytestimonialas ltwould establish

 To: The Honorable Thomas J. Rueter

Page 4 of 9

2015-08-26 20: 1 !:l:2U tGM I)

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the existence of certain proscribed materials, respondent's control overthem. clearly
potentially incriminating admissions. In order to overcome respondent's Fifth
Amendment privilege, the Government must showwtth reasonable particularttythat
producing the records would convey no neN informatiOn to the Government because
the documents' existence, their control by respondent, and their authenticity were a
"foregone conclusion" at the time the Summons was Issued in 2013. Here, the
Government has not discharged its heavy burden of establishing these facts, or,
indeed, any one of these three requirements and the application should be quashed.

THE ACT OF PROOUQ110N PRIVILEGE

It is beyond cavil that respondent has an absolute privilege under the Fifth
Amendment to refuse to produce the passwords sought by the government. My
response to the summons would manifest and· establish the existence and his
possession or control of the electronic devices at issue, as well as implicitly
authenticate them. United States v. Hubbell. 53ou:s. 27, 36-37 (2000); United States
v. Fox. 721 F.2d 32, 36-39 (2d Cir. 1983). Divulging the passwords could provide, ata
minimum a potential link in a chain of incriminating evidence.Hoffman v. United States
341 U.S. 479, 486, (1951) (holding that the Fifth Amendment covers evidence "which
would furnish a link in the chain of evidence needed to prosecute the claimant for a
federal crime").

The leading case on the act of production doctrine now is

United States v.

Hubbell, 530 U.S. 27 {2000), wherein the Supreme Court held that unless the
Government has specific knowledge of the existence of particular documents in an
individual's possession, it cannot compel production of documents, even business
records, from an Individual in the face of a valid assertion of the individual's Fifth
Amendment privilege. 530 U.S. at 44-45, 120 S. ct. at 2048. The Court stated that
when an individual is compelled to identify and produce documents which the
Government was previously unaware he possessed or that existed, the act of
producing the documents is "tantamount to answering a series of interrogatories

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 To: The Honorable Thomas J. Rueter

Page 5 of 9

2015-08-26 20: 15:20 (GMT)

1215563B2UU r-rom: t-'erry aeMarco >::>r.

asking a witnes.s to disclose the existence and location of particular documents." Id.,
530 U.S. at 31. Following the production of documents under compulsion the use of
the documents or their contents, which otherwise are not privileged, violates the Rfth
Amendment. Id., 530 U.S. at 42-43. Accordingly, it is submitted that compelling
respondent to divulge the requested passwords constitutes an act covered by the
Fifth Amendment and the government has a burden to show why respondent's
constitutional right not to incriminate himself would not be infringed.

THE FOREGONE CONCLUSION DOCTRINE

Instantly, the government recognizes that respondent is being compelled to
divulge the passwords and that doing so would be incriminating under the Fifth
Amendment right but states that requiring respondent to divulge the passwords is not
testimonial because it is purp::>rtooly aware of What is contained on the electronic
devices at issue, i.e., that their contents are a "foregone eonclusion" and respondent

cannot stand behind the Fifth Amendment and refuse to divulge the passwords it
requests. However, unless the Govemmerrt demonstrates a "foregone conclusion"
as to the existence, location and authenticity of records, such that "the question is not
of testimony but of surrender," Fisher, 425 U.S. at 411, the act of producing the
passwords warrants constitutional protection. Here. the government below asserts

that the testimonial aspects of the act of production are a "foregone conclusion"
because of viewed image labels and images certain family members vievved and
thus, the act of production would convey no information that it did not already have.
However, in order to defeat respondent's Fifth Amendment privilege claim
under the "foregone conclusion" doctrine. the Government must "establish its
knowledgeoftheexistence, possession and authenticity of subpoenaed documents
with 'reasonable particularity'." United States v. Hubbell, 167 F.3d 552, 579 (D.C. Cir.
1999) (emphasis added), aff'd, 530 U.S. 27. 120 S .Ct. 2032 (2000). The burdens of
proof and production as to a

~foregone conclusion" are on the Government.

In re

Grand Jurv Subpoena dated April 18. 2003, 383 F.3d 905, 910 (9th Cir. 2004); In re
Grand Jurv Proceedings, 41 F.3d 377, 380 (8th Cir. 1994). The Government must

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show that it had the requisite knowledge at the time it issued the Summons. Grand
JuN Subgoena dated April 16. 383 F.3d at 911; Hubbell, 167 F.3d at 569. This is a high

burden as the Government must demonstrate "that the United States knows, as a
certainty, that each of the myriad of documents demanded" is possessed or
controlled by defendant. United States v. Doe, 465 U.S. 605, 613 fn.12, (1984 ). The
government must also offer "evidence" establishing that the documents can be
"independently authenticated." In re Grand JuN Proceedings, 41 F.3d at 388. Finally,
the government's knowledge must be suffic::ient to "eliminate any possibility that the
witness' production would constitute aninaiminating testimonial act." United States
v. Fox, 721F.2d32, 37-38 (CA.N.Y.1983).

The foregone conclusion analysis is highly dependent on "the facts and
circumstances of particular cases." Fisher. 425 U.S. at 410. In evaluating claims of
''foregone conclusion," courts are careful to differentiate between requests for
documents whose specific existence or location had been proven or admitted and
more general requests for categories of documents whose existence is merely
presumed. For example, in Grand· Jurv Subpoena dated April 18

, supra the

Government sought a vvide variety of records from a witness it had inteNiewed
regarding an antitrust investigation relating to sales of computer memory chips. In the
inteNiew, the witness said he had sent specific emails relating to his conversations
aoout pricing infonnation, but that he had no other records. Id. at 908. At the close of
the interview, theGovernmentseNedabroad subpoena seeking inter alia calendars,
notepads, or "any similar documentsu relating to sales or production of the products
at issue. Id. The Ninth Circuit quashed the subpoena and reversed the district court's
finding of contempt, holding that the.Government had failed to demonstrate the
existence of and possession of the records with ''reasonable particularity" since the
only records it knew about were the few emails the witness had described. Id. at 91011. VVhile the existence and location of the emails the witness had admitted he sent
were a "foregone conclusion. u the court rejected a further claim that because the
Witness was a salesman he could be assumed to "always possess business records
describing or memorializing meetings or prices"; such an assumption "does not
establish the reasonably particular knowledge required." Id. at 911-12: see also United

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States v. Bright, 596 F.3d 683, 692-93 (9th Cir. 2010) (upholding finding of "foregone
condusion" for specmc records previously known to the Government but reversing
for generalized request for other records).
Instantly, respondent submits that simply because certain relatives may have
allegedly observed certain images on respondent's devices and advised government
agents of them, does not establish that they currently are contained in files saved on
the devices. No where set forth in the government's presentation is an Indication that
it can advert with the required degree of certainty that there is child pornography
stored on the devices. At this moment, the allegations remain just that, allegations,
which as noted above are insufficient to apply the foregone conclusion doctrine.

Respondentrelies onln re Grand JurvSub(X)Sna Duces Tecur@oe). 670F.3d
.
.
1335 (11th Cir. 2012), wherein FBl agents seized several laptop computers and
'

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external hard drives the FBI believed contained child pornography that could not be
accessed because the data was encrypted.The question before the Court was
whether compelling Doe to reveal the decrypted data violated the right against selfincrimination. The Doe Court ruled that because the government did not have
specific enough knowledge of what the devices may contain, the foregone
conclusion doctrine did not apply and

Doe did not have to assist the agents in

decrypting what. if, anything, may have been saved in the devices.
Respondent submits that Doe controls here and thus, thatthe process filed by
the government should be quashed. Thus, because the location, existence, and
authenticity of the purported evidence is not known to the government, the Fifth
Amendment applies because the government demands that respondent use the
contents of his mind against himself, Fifth Amendment protection is available. It is the
compelling an accused to provide a password or decrypt a device for the
government to gain access to information violates :the Rfth Amendment privilege
.
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reflects consistent Supreme Court precedent. See. i.e., Couch v. United States, 409
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U.S. 322, 328 (1973) {"it is extortion of information from the accused *16 himself that
offends our sense of justice.") and United States v. Hubbell, 530 U.S. at 37 ("whether
the constitutional privilege protects... the act of production itself, is a question that Is

 To: The Honorable Thomas J. Rueter

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distinctfrom the question whether·the unprotected COl'ltents ofthe documents

themselves are incriminating.").
In conclusion, it is d:?spectfuUy rqquE:Jsted that th~ Honorable Court rule that

·respondenthasavalidFifthAmendmentclaim not to divulge any passwords and the

government's prQ.CE:!:$s b.equashedbecause the government has not est@li$hed.
with the reqwisitedegree of certaJnty thEititis awar-E1 of.tt1.e contents of the deviC.e$

Respectfully Submftted;

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